United States v. Hoffmann, 75 M.J. 120 (the Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause; the military has implemented the Fourth Amendment through MREs 311–17).

(a seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property; the term ‘meaningful interference’ contemplates excluding inconsequential interference with an individual’s possessory interests; it must be more than a technical trespass; a seizure requires law enforcement agents to exercise a fair degree of dominion and control over the property).

United States v. Keefauver, 74 M.J. 230 (an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990) for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him).

(agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Maryland v. Buie, 494 US 325 (1990), criteria are met; the same concerns underlying officer safety in the context of an in-home arrest may pertain in equal measure when agents lawfully enter a home for some other purpose; as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s turf, at a disadvantage, and is an adjunct to a serious step, because probable cause to conduct a search for evidence has been established and may result in arrest and prosecution).

(under Maryland v. Buie, 494 US 325 (1990), agents entering a home lawfully may be entitled to make the second, more extensive type of protective sweep to ensure their safety; this extension of Buie to non-arrest situations should not be mistaken for a liberalization of the criteria required before such a sweep is constitutionally permissible; agents may conduct a protective sweep incident to a lawful entry under Buie so long as the sweep does not last longer than is necessary to dispel the reasonable suspicion of danger).

(the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others).

(while an officer’s mistake of law may sometimes bear on a potential Fourth Amendment violation, the Fourth Amendment tolerates only reasonable mistakes, and those mistakes must be objectively reasonable).

(in this case, the military judge and CCA erred in upholding a protective sweep of a home under Maryland v. Buie, 494 US 325 (1990), where agents entered a home lawfully pursuant to a search authorization to make a controlled delivery; the agents were not entitled to make the second, more extensive type of protective sweep to ensure their safety where neither of the two criteria that Buie established were satisfied by the facts of this case; a protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others; in this case, the government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief).

(the presence or suspected presence of drugs without more does not justify an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), nor does the bare conjecture and bald assertion that guns follow drugs, without additional facts; to suggest that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents).

United States v. Olson, 74 M.J. 132 (the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent).

United States v. Buford, 74 M.J. 98 (the protections provided by the Fourth Amendment do not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official).

(in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case; rather, it is necessary to examine all the facts and circumstances in a case when determining an individual’s authority as an agent of the government).

(in this case, although the individual involved in the search and seizure of appellee’s fake Facebook page and email account served as a member of the security forces, he was not acting as an agent of the government to invoke the protections of the Fourth Amendment where (1) he was off duty, (2) he was not a criminal investigator, (3) the government had no prior knowledge of his activities, (4) his actions could be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend, (5) he told his friend that it was up to her to decide what to do with the information that was discovered and that it was up to her to report the matter to appropriate authorities, (6) once investigators learned of the matter, they took steps to exclude him from further involvement in the case, (7) the record did not reveal any other clear indices of government encouragement, endorsement, or participation in the challenged search, and (8) the military judge erred when she applied a subjective test and relied on the individual’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent).

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable).

(the Fourth Amendment provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).

(the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, to implicate the Fourth Amendment in this respect, there must be clear indices of the government’s encouragement, endorsement, and participation in the challenged search; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view).

(MRE 311(a) proscribes that evidence obtained from a government’s unlawful search or seizure is inadmissible if two conditions are met: (1) the accused makes a timely motion to suppress, and (2) the accused had a reasonable expectation of privacy, a legitimate interest in the property seized, or other legal grounds to object).

2012 (September Term)

United States v. Kelly, 72 M.J. 237 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures).

(the Fourth Amendment provides in relevant part that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; however, the Fourth Amendment does not protect against all searches; rather, it proscribes only unreasonable searches; the ultimate standard set forth in the Fourth Amendment is reasonableness).

(pursuant to MRE 313(a), evidence obtained from inspections and inventories in the armed forces conducted in accordance with that rule is admissible at trial when relevant and not otherwise inadmissible under the MREs).

(an All Army Activities (electronic) Message did not amend the Army regulation governing the disposition of the personal effects of deceased and missing personnel to apply to wounded and medically evacuated soldiers, and no one who was otherwise authorized to impose such an amendment by directive or order did so; the method adopted by the Army to apply the provisions of the Army regulation governing the disposition of the personal effects of deceased and missing personnel to wounded or medically evacuated soldiers through an electronic message violated the Army’s own procedure for adopting or amending an Army regulation).

(while the Army could not amend an Army regulation through an electronic message, it also could not effectively achieve the same result by independently mandating the use of the procedures found in the Army regulation governing the disposition of the personal effects of deceased and missing personnel to the personal effects of wounded and medically evacuated soldiers; not only was the manner of the attempted amendment improper, the application of that regulation to wounded soldiers directly conflicted with the existing provisions of the regulation, and it generally conflicted with the provisions of the Army regulation governing the processing of personal effects for wounded soldiers who are admitted for treatment in medical facilities).

(the justification for conducting an inventory is that it is necessary to protect the property rights of the person and protect the government against false claims that the property, which it has seized, has been damaged, lost, or destroyed; an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence).

(MRE 313(c) addresses inventories and provides that unlawful weapons, contraband, or other evidence of crime discovered in the process of an inventory, the primary purpose of which is administrative in nature, may be seized; inventories shall be conducted in a reasonable fashion; an examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory within the meaning of the rule).

(inventories are upheld when conducted in accordance with service regulations and customs, which provides some assurance that the inventory is not a mere pretext for a prosecutorial motive).

(it is not an unreasonable search to conduct a shakedown of an individual’s effects to determine his readiness to carry out his military duties; an obvious and legitimate reason for the inventory exception is manifest in the nature of the military unit).

(although the initial inventory of appellant’s belongings in Iraq by a summary court-martial officer following appellant’s medical evacuation appeared to be a proper inventory, the Joint Personal Effects Depot’s subsequent search for gore, inappropriate, or porn did not fall within MRE 313(c)’s inventory exception).

(while inventories pursuant to standard police procedures are reasonable, the relevant test is the reasonableness of the seizure under all the circumstances).

(in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts).

(with respect to the expectations of privacy under the Fourth Amendment during a traditional military inspection, no serviceperson whose area is subject to the inspection may reasonably expect any privacy which will be protected from the inspection).

(like the inventory exception to the Fourth Amendment’s protection against unreasonable searches, the primary purpose of an inspection cannot be to obtain evidence for use in a trial by court-martial).

(the reasonableness of an inspection is determined by whether the inspection is conducted in accordance with the commander’s inspection authorization, both as to the area to be inspected, and as to the specific purpose set forth by the commander for ordering the inspection).

(the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation did not fall within MRE 313(c)’s inventory exception; the search amounted to a specific search for contraband; the search was not conducted to ascertain appellant’s readiness to carry out his military duties; on balance, the government intrusion into appellant’s privacy interest in his computer was not outweighed by legitimate governmental interests; further, the search did not produce anything resembling an inventory - once the articles were searched, they were simply shipped out; this is in conflict with the primary purpose of a traditional inventory; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure).

(the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation was not a valid inspection as prescribed by MRE 313(b); the search was not authorized as an inspection by anyone, let alone an officer with authority to order an inspection, and the primary purpose of the search did not determine or ensure the security, military fitness, or good order and discipline of the unit, but rather was to avoid embarrassment or added sorrow to the recipient; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure).

United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable).

(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable).

United States v. Cote, 72 M.J. 41 (the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness).

2011 (September Term)

United States v. Dease, 71 M.J. 116 (searches and seizures are not necessarily coterminous, particularly in the context of a urinalysis case; often they are not).

2009 (September
Term)

United
States v. Ayala, 69 M.J. 63 (evidence
obtained from an inspection conducted
in accordance with MRE 313 is admissible at trial when relevant and not
otherwise inadmissible under the MREs; an inspection is an examination
of the
whole or part of a unit, organization, or installation conducted as an
incident
of command, the primary purpose of which is to determine and to ensure
the
security, military fitness, or good order and discipline of the unit,
organization, or installation; an examination made for the primary
purpose of
obtaining evidence for use in a trial by court-martial or in other
disciplinary
proceedings is not an inspection within the meaning of MRE 313).

(a wing commander’s policy
memorandum to his
command stating that his purpose in ordering a follow-up urinalysis to
a
previous positive drug test was to ensure security, military fitness,
and good
order and discipline, a policy subsequently reaffirmed in an affidavit,
established that such a reexamination was a lawful inspection in
accordance
with MRE 313(b)’s definition of an inspection, despite the fact that
the SJA
had proposed the policy to increase the likelihood of conviction;
appellant
offered no objection to the admission of the wing commander’s
affidavit; if
appellant had desired to further test the purpose of the policy, he
could have
sought to depose the wing commander or demand his presence at trial so
he would
be subject to cross-examination; he did not do so, and he did not
present any
other evidence showing that the examination’s purpose was other than
the one
announced by the wing commander; as such, the military judge’s finding
that the
government had proved by clear and convincing evidence that the
examination was
conducted to ensure the security, military fitness, and good order and
discipline of the wing was not clearly erroneous, and that being the
case, the
military judge did not err in finding that appellant’s follow-up
urinalyses
were conducted for a permissible purpose).

United
States v. Huntzinger, 69 M.J. 1 (the military
rules of evidence with
respect to the search and seizure powers granted to military commanders
in MREs
311 to 317 apply in domestic and deployed locations; although the
application
of the rules and the exceptions therein depend upon the context, there
is no
general exception for locations or living quarters in a combat zone).

(there is no constitutional
requirement that the person issuing a search authorization have some
minimal
legal or educational qualifications).

2008 (September
Term)

United
States v. Weston, 67 M.J. 390 (the Fourth
Amendment provides that the right
of the people to be secure in their persons, houses, papers, and
effects,
against unreasonable searches and seizures, shall not be violated, and
no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the
persons or things to be seized).

(ordinarily, warrantless entry
into a person’s
house is unreasonable per se).

2008 (Transition)

United
States v. Michael, 66 M.J. 78 (the Fourth Amendment
does not protect against all searches; rather, it proscribes only
unreasonable
searches; the
ultimate standard set forth in the
Fourth Amendment is reasonableness; for the purposes of military
law, a
Fourth Amendment search is a
government
intrusion into an individual’s reasonable expectation of privacy).

United
States v. Miller, 66 M.J. 306 (evidence obtained
from a military inspection is admissible at trial when relevant
and not
otherwise inadmissible under the Military Rules of Evidence).

(the authority to order an
inspection under
MRE 313 is directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s responsibility
to ensure
fitness of a unit, that keeps a valid inspection scheme within
constitutional
parameters, and is important in justifying the reasonableness of what
is
otherwise a warrantless search).

(a urinalysis test that was
the product of an
order issued by a civilian Air Reserve Technician who did not have
command
authority to issue the order was not incident to command, did not
comply with
MRE 313, and was an unlawful search; accordingly, that urinalysis and
the
resulting confession, which was the fruit of the unlawful search, must
be
suppressed).

United
States v. Wallace, 66 M.J. 5 (a seizure of
property, for purposes of the
Fourth Amendment, occurs when there is some meaningful interference
with an
individual’s possessory interest in property; as such, a seizure can
occur
either with or without an attendant search; in either case, the search
and the
seizure necessitate separate analyses under the Fourth Amendment; if
searches and
seizures are separate concepts, consent to one is not, without more,
consent to
the other; similarly, revoking consent to one does not of itself revoke
consent
to the other).

2007

United States v. Leedy, 65 M.J. 208 (in granting the
investigator’s search authorization request of appellant’s computer,
the magistrate did not simply rubber stamp that request, but acted in a
neutral and detached manner, where he closely read the affidavit,
questioned the investigator about the matter for more than twenty
minutes and did not immediately accept his answers, and he proceeded to
speak with others including the roommate’s and appellant’s commanding
officer to gain further insight about whether there was any motive for
the roommate to fabricate charges against appellant).

United States v. Flores, 64 M.J. 451 (evidence
obtained as a result of an unlawful search is inadmissible against an
accused who makes a timely motion or objection establishing a
reasonable expectation of privacy in the person, place, or property
searched; an accused bears the burden of demonstrating a subjective
expectation of privacy which is objectively reasonable).

(an
accused has no privacy
interest in voluntarily abandoned property, and lacks standing to
complain of the search or seizure of such property; if, however, a
person discards articles in reaction to illegal police conduct, such
action does not deprive the individual of the right to object to the
illegitimacy of the police action in searching or seizing those
articles).

(the
military judge’s finding
that appellant voluntarily abandoned his bag by switching bags with
another recruit before a search was ordered was not clearly erroneous
when the evidence was viewed in the light most favorable to the
government; because the military judge properly determined that
appellant abandoned his bag voluntarily and not in response to the
allegedly illegal police conduct, appellant did not carry his burden at
the motion hearing or on appeal of demonstrating that he had a
reasonable expectation of privacy in the bag; accordingly, appellant
lacked standing to challenge the validity of the search or the
admission of derivative evidence, including his confession).

2006

United States v. Long, 64 M.J. 57 (the Fourth
Amendment of the Constitution protects individuals, including
servicemembers, against unreasonable searches and seizures; CAAF has
described a search as an official governmental intrusion into an
individual’s reasonable expectation of privacy; whether such an
expectation of privacy exists is therefore a question in any search and
seizure analysis; the question is resolved by examining whether the
individual challenging the alleged intrusion had a subjective
expectation of privacy which was objectively reasonable; if such an
expectation is established, the inquiry then moves to the remaining
issues raised by the Fourth Amendment).

(official
intrusions into
protected areas in the military require search authorization supported
by probable cause, unless they are otherwise lawful under the Military
Rules of Evidence or the Constitution of the United States as applied
to members of the armed forces).

(there
are two situations
where employer searches into zones of privacy are legitimate even if
not supported by normal Fourth Amendment warrant and probable cause
requirements; the first is where the search is for noninvestigatory,
work-related purposes; the second is if the search by the employer is
investigatory but involves matters of workplace misconduct; in either
of these situations the search is evaluated using the standard of
reasonableness based on all the surrounding facts and circumstances;
when the reasonableness standard is applicable, the government must
establish: (a) that the search was justified at its inception; and (b)
that the conduct of the investigation was reasonably related in scope
to the circumstances which justified the interference in the first
place).

United States v. Conklin, 63 M.J. 333 (evidence
derivative of an unlawful search, seizure, or interrogation is commonly
referred to as the fruit of the poisonous tree and is generally not
admissible at trial).

(although initial entry into
appellant’s room was a valid military inspection to ensure unit fitness
and proper standards, after an inspector inadvertently disturbed the
keyboard of appellant’s personal computer causing the monitor to
activate and reveal a wallpaper containing an image of a partially nude
woman, a subsequent examination of computer files on the computer that
were not in plain view exceeded the authorized purpose and scope of the
inspection; because an individual sharing a two-person dormitory room
has a reasonable expectation of privacy in files kept on a personally
owned computer, the subsequent examination was an unlawful search).

(the
test used in evaluating
the question of a reasonable expectation of privacy is a twofold
requirement: (1) a person must exhibit an actual (subjective)
expectation of privacy and, (2) the expectation must be one that
society is prepared to recognize as reasonable).

(an
individual sharing a
two-person dormitory room has a reasonable expectation of privacy in
files kept on a personally owned computer; such an individual has a
subjective expectation of privacy in the files stored on the hard drive
of his computer and military society would recognize such an
expectation as reasonable).

(the
fundamental purpose of
the exclusionary rule is to deter improper law enforcement conduct).

2005

United
States v. Garlick, 61 M.J. 346 (any error in failing to disclose to
the
accused information about factual inaccuracies in a search warrant
affidavit of
an FBI special agent who conducted a child pornography investigation
which led
to the charges against the accused was harmless beyond a reasonable
doubt,
where the government’s undisclosed information was within the accused’s
knowledge
well before trial; even after being formally notified after trial of a
disclosure error, and obtaining a delay to consider legal options,
accused’s
counsel declined to litigate the issue or advocate its importance to
the
convening authority in her RCM 1105 submission).

2004

United
States v. Daniels, 60 MJ 69 (the Fourth Amendment by
its
express terms protects individuals against unreasonable searches and
seizures;
under the Military Rules of Evidence, which implement the Fourth
Amendment,
evidence illegally seized by government agents from a protected place
is
inadmissible).

(the
question of
whether a private actor performed as a government agent does not hinge
on
motivation, but rather on the degree of the government’s participation
in the
private party’s activities, a question that can only be resolved in
light of
all the circumstances; to implicate the Fourth Amendment in this
respect, there
must be clear indices of the government’s encouragement, endorsement,
and
participation in the challenged search).

(in
the instant
case, rather than retrieve a vial of suspected cocaine on his own
initiative
from his roommate’s nightstand and then bring it to his chief petty
officer for
consultation, the servicemember instead first consulted his chief, and
then,
only after he received the order from his chief to do so, retrieved the
vial;
in other words, the chief’s specific order as a government official
triggered
the servicemember’s actual seizure of the vial; in light of these
facts, we
hold that the chief clearly encouraged, endorsed, and participated in
the
servicemember’s seizure of the vial and, accordingly, that the
servicemember
acted as the chief’s agent when he seized the vial).

(given
the
servicemember’s role as a government agent, his warrantless search of
appellant’s nightstand drawer to seize the vial of cocaine was
unlawful).

United
States v. Rodriguez, 60 MJ 239 (where appellant
was not
aware of police presence, his claim that police formed a moving
roadblock while
surveilling him on highway did not rise to a Fourth Amendment seizure).

2002

United
States v. Khamsouk, 57 MJ 282 (the Constitution
does not
permit military investigators greater power to conduct warrantless
entries into
a civilian home than their civilian counterparts).

1999

United
States v. Hall, 50 MJ 247 (direction to maintain the status
quo and not let anyone leave a given room did not violate the
Fourth
Amendment where there was probable cause to believe that evidence of
criminal
activity was on the premises; temporary securing of a dwelling to
prevent the
removal or destruction of evidence is reasonable).

United
States v. Owens, 51 MJ 204 (it is not a search for law
enforcement officials to look into an automobile through a window or
open
door).

Apprehension/arrest:

2014 (September Term)

United States v. Keefauver, 74 M.J. 230 (an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990) for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him).

(the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others).

2002

United
States v. Khamsouk, 57 MJ 282 (the arrest of a
person
inside his own home made with a valid arrest warrant does not violate
the
Fourth Amendment, and does not require a search warrant; an arrest
warrant is
sufficient to protect a citizen’s privacy interest in his own home when
he is
arrested there).

(status as an overnight guest is alone enough to show that an
individual had
an expectation of privacy in the home that society is prepared to
recognize as
reasonable; the overnight guest has a sufficient interest in another’s
home and
therefore, is protected from a warrantless arrest in that home under
the Fourth
Amendment).

(military or civilian officials acting pursuant to a DD Form 553
request to
apprehend a military absentee, may not do so by entering a civilian
residence
without a civilian warrant).

(the DD Form 553 is not the functional equivalent of a civilian
arrest
warrant in the context of entering a civilian home).

Automobile
exception:

2015 (September Term)

United States v. Harrell, 75 M.J. 359 (an automobile traffic stop is subject to the constitutional imperative that it will not be unreasonable under the circumstances).

(generally, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred).

(a police officer’s authority to keep an individual at a traffic stop ends when tasks tied to the traffic infraction are, or reasonably should have been, completed).

(there is no bright-line rule governing whether the length of a traffic stop is reasonable; rather, it is appropriate for a court to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the accused).

(during a traffic stop, an officer may continue detention where he has a reasonable suspicion of criminal activity sufficient to justify that detention; a reasonable suspicion is less than probable cause, and has been defined as a particularized and objective basis for suspecting the particular person stopped of criminal activity; this inquiry must be based on the totality of the circumstances; the analysis proceeds with various objective observations, including consideration of the modes or patterns of operation of certain kinds of lawbreakers; from this data, a trained officer draws inferences and makes deductions that might well elude an untrained person; recognizing that this process of inferences and deductions does not deal with hard certainties, but with probabilities, due weight is afforded to the factual inferences drawn by the law enforcement officer).

(in this case, during the traffic stop, the officer observed that the accused driver was unkempt and unclean in appearance, her eyes were not completely open, her hands shook as the officer questioned her, she took long pauses before responding, and when she did speak, her responses were mumbled; based on these observations, the officer believed the accused was under the influence of alcohol or drugs; in addition, the officer believed that the accused might have been engaged in drug trafficking because she had driven a rental car a long distance from St. Louis in order to reach an area locally known for drug activity, but an area that would likely be unknown to most people coming from St. Louis; furthermore, the officer testified that in his fifteen years of experience, every person that he had stopped who was on his or her way to this local area was also in possession of drugs; taken together and based on the officer’s training and experience, these observations establish a particularized and objective basis to suspect that the accused was involved in drug use or trafficking; because a reasonable suspicion of drug use or activity existed, the traffic stop was not unreasonably extended when the officer requested the assistance of a canine drug-detection unit and the time period from the dispatch request to the end of the dog sniff was only about seven or eight minutes in total).

(conducting a dog sniff does not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed on appellant’s constitutionally protected interest in privacy).

(a dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment).

(in this case, the military judge did not clearly err by finding that a drug dog sniff complied with the Fourth Amendment where he reviewed the patrol car’s dashboard footage of the dog sniff and determined that when the dog alerted at the driver’s side door, he reached his paws up the side of the car to get his nose closer to the open window but did not extend his nose into the passenger compartment; when the evidence is considered in the light most favorable to the government, there was no basis for concluding the military judge’s factual findings were clearly erroneous).

(in this case, where the police did not impermissibly extend a traffic stop nor did the military judge clearly err when he concluded the drug dog’s nose did not penetrate the interior of the open car window, the dog sniff and subsequent search of appellant’s vehicle did not violate the Fourth Amendment).

1999

United
States v. Owens, 51 MJ 204 (there are two constitutional
bases for the automobile exception to the warrant requirement:
(1)
mobility, and (2) reduced expectation of privacy; without deciding
whether
an automobile must be operable at time of a search under the automobile
exception, Court holds search lawful where officer did not know vehicle
was inoperable and had no duty to ascertain functional capability of
vehicle;
MRE 315(g)(3)).

United
States v. Richter, 51 MJ 213 (observation of several items
in truck during lawful investigative stop provided probable cause to
believe
that appellant had stolen government property in his truck, which
provided
legal basis for search of truck under automobile exception and MRE
315(g)(3)).

(while military service
necessitates a reduced expectation of privacy in bodily fluids with
respect to
drug testing, servicemembers otherwise generally retain their Fourth
Amendment
right against unreasonable search and seizure).

(within the context of bodily
fluids, there are a number of exceptions to the warrant requirement as
well as
circumstances that would negate the need for a warrant; these include
situations where there exists both probable cause and the need to
prevent the
loss of evidence, where the search is necessary to save someone’s life
and the
evidence is in plain view, and where the government demonstrates
special needs,
beyond the normal need for law enforcement; in addition, MRE 312(f),
rather
than being an exception to the warrant requirement, authorizes the
admission of
evidence that was developed incident to a valid medical purpose).

(MRE 312(f) permits the
admission
of evidence found or seized during the regular course of medical
treatment, that
is, incidental to medical treatment; however, the rule is not intended
to serve
as cover and concealment for law enforcement inquiries or as an
exception to
otherwise applicable Fourth Amendment requirements; therefore, the rule
does
not serve to permit additional searches and seizures that are not
incident to
treatment; whether such additional searches are admissible is a
question of
Fourth Amendment analysis).

(there is no indication that
either
Congress, through delegated authority to the President under Article
36, UCMJ,
or the President, through promulgation of MRE 312, intended to abolish
servicemembers’ expectation of privacy in blood drawn in furtherance of
military preparedness).

(in this case, where
appellant had
one vial of blood drawn by medical personnel for the purpose of
treatment and a
second, additional vial drawn at the request law enforcement
authorities so
that they might have the blood tested to identify appellant’s DNA, because the
second vial was not drawn incidental to medical treatment, MRE 312(f)
was not
applicable to it and did not otherwise obviate appellant’s reasonable
expectation of privacy).

(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).

(in this case, the Fourth
Amendment
problem was that the second vial of blood taken from appellant and
provided to law
enforcement authorities represented a distinct search and seizure from
that
undertaken incident to appellant’s treatment for diabetes with respect
to the
first vial of blood; whatever might be said of appellant’s expectation
of
privacy with regard to the blood draw itself, a search for DNA from the
second vial of blood was not incident to his treatment for diabetes
under MRE
312(f) and was not otherwise authorized by warrant or warrant
exception).

2000

United
States v. Stevenson,
53 MJ 257 (in determining whether prolonged
insertion of a needle to extract a second vial of blood, solely for law
enforcement purposes, was a de minimus intrusion with respect to
the Fourth Amendment and MRE 312(f), the military judge will consider
the
effect of the type of intrusion, the length of the prolonged insertion,
the quantity of fluid extracted, and the legal significance of the
nature
of the fluid extracted).

Commanders:

2009 (September Term)

United
States v. Huntzinger, 69 M.J. 1 (the military
rules of evidence with
respect to the search and seizure powers granted to military commanders
in MREs
311 to 317 apply in domestic and deployed locations; although the
application
of the rules and the exceptions therein depend upon the context, there
is no
general exception for locations or living quarters in a combat zone).

(a military commander may
authorize
a search based upon probable cause with respect to persons or property
under
the control of the commander in accordance with MRE 315(d)(1).

(MRE 315(d) provides that a
person
authorizing a probable cause search must be an impartial individual;
the
evaluation of impartiality includes consideration of whether a
commander’s
actions call into question the commander’s ability to review
impartially the
facts and circumstances of the case; to the extent that appellate case
law has
indicated that a commander acting as a law enforcement official with a
police
attitude may be disqualified from authorizing a search, the
disqualification
applies when the evidence demonstrates that the commander exhibited
bias or
appeared to be predisposed to one outcome or another; the participation
of a
commander in investigative activities in furtherance of command
responsibilities, without more, does not require a per se
disqualification of a
commander from authorizing a search under MRE 315; in that regard, a
commander’s
direction to take reasonable investigative steps to ascertain the facts
prior
to making an impartial probable cause decision does not disqualify the
commander from issuing a search authorization under MRE 315).

(there is no constitutional
requirement that the person issuing a search authorization have some
minimal
legal or educational qualifications).

(the requirement for
impartiality of
a commander issuing a search authorization serves to establish an
orderly
process and prevent the magistrate from representing a law enforcement
interest
while at the same time authorizing searches and seizures).

(the critical inquiry in
determining
if a commander was biased or participated in an investigation to such
an
extent, or in such a manner, that he compromised his ability to act
impartially
in issuing a search authorization is whether the commander conducted an
independent assessment of the facts before issuing the search authority
and
remained impartial throughout the investigation process).

(commander who ordered
investigation
after he learned that child pornography was potentially circulating
among members
of his unit was not disqualified from authorizing a search of the
accused’s
computer on the ground that he was not impartial, where he did not
predetermine
any issues or the outcome of the probable cause decision prior to
hearing and
viewing the evidence; he did not authorize the search until after the
investigating officer had narrowed the potential suspects to three
soldiers,
including the accused, and his subsequent actions, such as requesting
the
computer password from the accused, reviewing the files on the
computer, and
evaluating the evidence, reflect the reasonable actions of a commander
charged
with maintaining good order and discipline within his unit; as such, he
was not
disqualified from viewing the fruits of the search for the purposes of
exercising
his responsibilities over the unit as a commander).

2008 (Transition)

United
States v. Miller, 66 M.J. 306 (the authority
to order an inspection under
MRE 313 is directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s responsibility
to ensure
fitness of a unit, that keeps a valid inspection scheme within
constitutional
parameters, and is important in justifying the reasonableness of what
is
otherwise a warrantless search).

(a valid inspection is
conducted as an
incident of command).

(a urinalysis test that was
the product of an
order issued by a civilian Air Reserve Technician who did not have
command
authority to issue the order was not incident to command, did not
comply with
MRE 313, and was an unlawful search; accordingly, that urinalysis and
the
resulting confession, which was the fruit of the unlawful search, must
be
suppressed).

2002

United
States v. Khamsouk, 57 MJ 282 (while a commander
has
powers similar to a federal magistrate judge, those powers are
constrained in
scope to persons and places under military control).

(a military commander — no matter how neutral and impartial he
strives to be
— cannot pass muster constitutionally as a “magistrate” in the strict
sense).

1999

United
States v. Hall, 50 MJ 247 (in the absence of regulations
to the contrary, commander may resume command during a temporary term
of
absence at his discretion).

United
States v. Owens, 51 MJ 204 (when reviewing a commander’s
decision to authorize a search, an appellate court determines whether
the
commander had a substantial basis for concluding that probable cause
existed).

Consent:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (a search conducted with the consent of the accused is one of the specifically established exceptions to the requirements of both a warrant and probable cause; property may be seized with consent consistent with the requirements applicable to consensual searches under MRE 314; the government bears the burden of showing the applicability of the exception).

(the scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time).

(in this case, where government investigators collected electronic media during a consent search of appellant’s room, appellant withdrew his consent while the media were still sitting in his room; although the agents may have moved the media to a central location in the room, they did not meaningfully interfere with it until they removed it; as the seizure of the media occurred after appellant had withdrawn his consent, the seizure violated the Fourth Amendment).

2014(September Term)

United States v. Olson, 74 M.J. 132 (the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent).

(a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

(searches may be conducted of any person or property with lawful consent; to be valid, consent must be given voluntarily; the test for voluntariness is whether the consent was appellant’s own essentially free and unconstrained choice or was her will overborne and her capacity for self-determination critically impaired).

(the prosecution has the burden of proving consent to search by clear and convincing evidence).

(whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances).

(in this case, the military judge’s finding that appellant voluntarily consented to the search of her home was not clearly erroneous under the totality of the circumstances where the military judge applied the Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) and determined that ((1) appellant’s liberty was not restricted, (2) law enforcement agents did not threaten or bully appellant into consenting, (3) appellant was inferentially aware of her right to refuse to consent based on some knowledge of law enforcement tactics, (4) appellant was upset on learning from law enforcement agents that her husband had been arrested, but in spite of this, she had the ability to make a rational decision, (5) appellant did not consult with counsel because she had not been informed that she was a suspect and had not been advised of her rights, and (6) there were no prior violations of appellant’s rights; as such, appellant’s consent to search was a product of her free and unconstrained choice, and not a result of duress or coercion, express or implied, and the military judge did not abuse his discretion in admitting evidence derived from that consent to search).

United States v. Piren, 74 M.J. 24 (a search may be conducted with lawful consent; consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous; courts evaluate voluntariness with regard to consent based on the totality of circumstances; where the government has prevailed on a motion to suppress, an appellate court reviews the evidence in the light most favorable to the government).

(to determine whether a consent was voluntary, the following six nonexclusive factors set forth in US v. Wallace, 66 MJ 5 (CAAF 2008) may be examined: the degree to which liberty was restricted, the presence of coercion, a suspect’s awareness of the right to refuse based on inferences of the suspect’s age, intelligence, and other factors, the suspect’s mental state at the time, consultation, or lack thereof, with counsel, and the coercive effects of any prior violations of the suspect’s rights).

(although access to counsel is relevant to the analysis of whether a consent to a search is voluntary, there is no right to have an attorney before consent is granted).

(in this case, reviewing the evidence in the light most favorable to the government, the military judge did not abuse her discretion in finding that appellant’s consent to a sexual assault evaluation was voluntary; while appellant may have believed that his liberty was restricted to some degree and while he did ask whether he should get an attorney, those factors are not sufficient to invalidate his consent; once appellant arrived at the clinic, he was told several times that his decision to consent to the exam was voluntary and that he could refuse; and the consent form that he reviewed and signed clearly reiterated those rights).

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes).

2011 (September Term)

United States v. Dease, 71 M.J. 116 (MRE 314(e)(3) states that consent to search may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time; the language is plain; consent may be withdrawn at any time, provided of course that the search has not already been conducted).

(appellant, who consented to a urinalysis during a drug investigation, had an ongoing privacy interest in his urine sample after it was seized and before it was searched at the drug laboratory; therefore, appellant could assert this privacy interest by withdrawing his consent to search under MRE 314 prior to the sample being tested; accordingly, the military judge did not abuse his discretion in ruling that appellant had a privacy interest in his urine sample and could withdraw consent prior to the search; and, the CCA erred in determining that appellant’s privacy interest in his urine sample was extinguished by his voluntary surrender of his sample to the government; appellant did not abandon his urine, only to have it later collected and tested; he consented to the search of his urine for evidence of drug use, and later withdrew that consent).

2008
(September Term)

United
States v. Weston, 67 M.J. 390 (while the rule
against warrantless entry is
vigilantly guarded, the voluntary consent of an individual possessing
authority
is one carefully drawn exception; voluntary consent to search may be
obtained
from the person whose property is to be searched or from a fellow
occupant who shares
common authority over the property).

(the consent to search of one
who possesses
common authority or other sufficient relationship over premises or
effects is
valid as against the absent, nonconsenting person with whom that
authority is
shared; common authority over a home extends to all items within the
home,
unless the item reasonably appears to be within the exclusive domain of
the
third party; additionally, common authority can be obtained via mutual
use of the
property by a person with joint access or control).

(express refusal to search a
home by a
physically present co-occupant renders a warrantless search based on
the
consent of another co-occupant unreasonable and invalid as to him; the
specific
combination of the physical presence of the cotenant at the scene, plus
the
cotenant’s immediate challenge renders the warrantless search
unreasonable and
invalid).

(reasonableness of a
warrantless search due to
voluntary consent is a simple binary proposition; either there is
consent or
there is not).

(where one party has joint
access and control
to a property and voluntarily consents to a search, a warrantless
search is
reasonable, unless a nonconsenting party who shared authority over the
premises
was physically present and immediately objected to the search; the term
“nonconsenting” is general and inclusive; it encompasses all who do not
expressly
consent, including those who refuse, those who remain silent, and those
who are
not asked).

(the search of appellant’s
house was
reasonable based on his wife’s consent, where his wife possessed common
authority over the premises, where appellant was a nonconsenting party
who
shared authority over the premises, but was not physically present to
provide
an immediate challenge to his wife’s consent to search, and where there
was no
evidence that appellant was removed from his house so that he could not
effectively object to its search; physical presence and immediate
challenge are
required for a nonconsenting tenant’s objection to nullify the
reasonableness
of the search).

2008
(Transition)

United
States v. Gallagher, 66 M.J. 250 (ordinarily the
search of a home,
to include a search of items, such as a briefcase within the home, is
prohibited in the absence of a warrant; the prohibition does not apply,
however, to situations in which voluntary consent has been obtained).

(valid consent to search can be
provided, under some circumstances, by a third party; a third party has
authority to consent to a search when he possesses common authority
over or
other sufficient relationship to the premises or effects sought to be
inspected).

(under the apparent authority
doctrine, a search may be reasonable under the Fourth Amendment even
though the
person purporting to give consent lacks actual authority to consent,
if, viewed
objectively, the facts available to the law enforcement officer at the
moment
would warrant a man of reasonable caution to believe that the
consenting party
had authority over the premises or effects).

(the scope of the apparent
authority to consent with respect to a container on the premises
depends on
whether it was objectively unreasonable under the circumstances for a
law
enforcement officer to believe that the consent extended to the
particular container
on the premises and the container could reasonably hold the object of
the
search).

(while the scope of consent to
search a premises may be delimited by the consenter, if the consent
would
reasonably be understood to extend to a particular container, the
Fourth
Amendment provides no grounds for requiring a more explicit
authorization).

(absent evidence tending to
show
that an officer should have known that a closed container on the
premises was
not under the authority of a person who consented to the search, the
search of
a closed container belonging to a third party will be deemed
reasonable).

(a military judge did not
abuse
his discretion denying a motion to suppress on the ground that a spouse
had
apparent authority to consent to the search of the briefcase where
there was
nothing to indicate that common authority over the briefcase had been
withheld,
the briefcase was kept in a common area and opened without manipulation
of the
tumblers, and the law enforcement officer who discovered the briefcase
was
reasonable in relying on the spouse’s consent to search the home, which
was not
limited in any way, because he possessed no facts that reasonably
should have
caused him to believe the briefcase was the exclusive domain of
appellant and
it would have been just as reasonable to conclude the briefcase was
primarily
used by the consenting spouse).

(when one
spouse consented to a
search of the entire house, the apparent authority doctrine extended
that
consent to an androgynous, unmarked, unlocked, briefcase kept in a
common area
of the home, which could reasonably hold the object of the search,
videotapes
and pictures, as it was objectively reasonable for a law enforcement
officer to
believe the general consent to search the home for videotapes and
pictures
included valid consent to search unlocked containers which might hold
such
evidence, to include the briefcase).

United
States v. Wallace, 66 M.J. 5 (MRE 314(e)(3)
states that consent to search may
be limited in any way by the person granting consent, including
limitations in
terms of time, place, or property and may be withdrawn at any time).

(it is the objective
reasonableness of the
consent - not an accused’s supposed impression - that controls).

(MRE 314(e)(3) implements a
limited scope rule,
which requires investigators to account for any express or implied
limitations
on a consent to search; those limitations, however, cannot be
determined on the
basis of the subjective intentions of the consenting party; the
standard is
that of objective reasonableness -- what would the typical reasonable
person
have understood by the exchange between the officer and the suspect).

(in this case, clearly, a
reasonable person
could conclude that an authorization permitting the search and seizure
of “my
computer” would permit investigators not only to search, but also to
remove the
computer from the premises).

(even though appellant
initially consented to a
general search of his home and computer, his subsequent exhortation to
investigators that they could not take his computer revoked any consent
to
seize the computer; his exhortation may have revoked his consent to
seize the
computer, but disapproval of the seizure cannot, without more, affect
the
consent to search in the first place).

(a seizure of property, for
purposes of the
Fourth Amendment, occurs when there is some meaningful interference
with an
individual’s possessory interest in property; as such, a seizure can
occur
either with or without an attendant search; in either case, the search
and the
seizure necessitate separate analyses under the Fourth Amendment; if
searches
and seizures are separate concepts, consent to one is not, without
more,
consent to the other; similarly, revoking consent to one does not of
itself
revoke consent to the other).

(where appellant signed a
“Consent for Search
and Seizure” that clearly gave investigators the right to search his
residence
and computer and to take away anything they considered evidence of an
offense,
appellant’s later objection that the investigators could not take his
computer
clearly embraced the seizure of the computer, and nothing more; as
such, while
appellant consented to both a search and any attendant seizures, his
pleas to
investigators to leave the computer revoked his consent to this
particular
seizure, but not to the search).

(a non-accused co-resident
cannot supersede the
wishes of the accused co-resident to consent to search because, after
all,
Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted).

(an appellate court determines
the voluntariness
of a consent to seizure from the totality of all the circumstances).

(the following non-exhaustive
factors should be
considered in determining the voluntariness of consent: (1) the degree
to which
the suspect’s liberty was restricted; (2) the presence of coercion or
intimidation; (3) the suspect’s awareness of his right to refuse based
on
inferences of the suspect’s age, intelligence, and other factors; (4)
the
suspect’s mental state at the time; (5) the suspect’s consultation, or
lack
thereof, with counsel; and (6) the coercive effects of any prior
violations of
the suspect’s rights).

(in this case, as soon as
appellant revoked his
consent to the seizure, investigators informed him that they would have
to take
his computer as a matter of routine, and appellant acceded; this second
so-called consent amounted to mere passive acquiescence to the color of
authority and was not a valid consent; under the totality of the
circumstances,
appellant’s acquiescence did not constitute free and voluntary consent
to his
computer’s seizure after revocation of his initial consent to seize;
appellant’s ultimate consent to his computer’s seizure lacked
sufficient
indicia of voluntariness, where he clearly faced restrictions on his
liberty by
being escorted by two investigators and his first sergeant, where the
facts of
the escort and the presence of several authority figures also created a
coercive and intimidating atmosphere that stifled appellant’s
inclination to
refuse consent, where, even though appellant was a twenty-six-year-old
staff
sergeant with nearly eight years of service, it is doubtful that he
knew he
could withdraw consent once given in light of the investigator’s
assurance that
seizure was a routine procedure and the fact that neither the written
consent
form nor the Article 31, UCMJ, rights warnings explicitly stated that
he could
withdraw consent, and where appellant never consulted counsel
throughout his
questioning and the subsequent search).

2007

United States v. Moran,
65 M.J. 178 (under the
Fourth Amendment, an accused has the right to deny a special agent’s
initial request for his consent to the collection of his body hair).

(refusing to consent to a
warrantless search is privileged conduct which cannot be considered as
evidence of criminal wrongdoing).

United States v. Rader, 65 M.J. 30 (a law
enforcement officer does not violate the Fourth Amendment’s
proscription against unreasonable searches and seizures where a third
party who possesses common authority over the premises or effects
consents to the search).

(ordinarily,
the search of a
home, to include a search of items within the home, such as a computer,
is prohibited in the absence of a warrant; the prohibition does not
apply, however, to situations in which voluntary consent has been
obtained; valid consent to search can be provided, under some
circumstances, by a third party).

(the validity of the third
party consent does not hinge on niceties of property law or on legal
technicalities; rather, a third party has authority to consent to a
search when he possesses common authority over or other sufficient
relationship to the premises or effects sought to be inspected; that
consent is valid as against the absent, nonconsenting person with whom
that authority is shared).

(common authority for the
purposes of the validity of third party consent is mutual use of the
property by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own right
and that the others have assumed the risk that one of their number
might permit the search; MRE 314(e)(2) recognizes this same concept:a third party may grant consent to search property when the
person exercises control over that property).

(consent
to use a computer can
be limited in scope by its owner to certain applications or files; in
the personal computer context, courts examine whether the relevant
files were password-protected or whether the accused otherwise
manifested an intention to restrict third-party access).

(appellant’s roommate had
sufficient access and control of appellant’s computer to consent to the
search and seizure of certain unencrypted files in appellant’s
non-password-protected computer; the record supports the military
judge’s conclusion that the roommate had common authority over
appellant’s computer for most purposes, where appellant’s computer was
physically located in his roommate’s bedroom, where neither appellant’s
computer nor the folder at issue was protected by a password, where
appellant never told his roommate not to access his computer or any
files within the computer, where his roommate used appellant’s computer
to play computer games with appellant’s knowledge and consent, and
where his roommate accessed appellant’s computer approximately every
two weeks to perform routine maintenance; in this case, it would be
difficult to imagine how there could have been a greater degree of
joint access, mutual use, or control).

2006

United
States v. Conklin, 63 M.J. 333 (the granting of
consent to search may
sufficiently attenuate the taint of a prior constitutional violation;
however, if
an accused’s consent, albeit voluntary, is determined to have been
obtained
through exploitation of the illegal entry, it can not be said to be
sufficiently attenuated from the taint of that entry).

(to
determine
whether an accused’s consent was
an independent act of free will, breaking the causal chain between the
consent
and a prior constitutional violation, three factors are considered:(1) the temporal proximity of the illegal
conduct and the consent; (2) the presence of intervening circumstances;
and (3)
the purpose and the flagrancy of the initial misconduct).

(appellant’s
consent to search did not cure
the prior constitutional violation where (1) in terms of the temporal
proximity
of the illegal conduct and the consent, less than three hours elapsed;
(2) there
were no intervening circumstances sufficient to remove the taint from
the
initial illegal search; and (3) the exploitation of the information
obtained
from the illegal search was flagrant even if the search itself was not).

2004

United
States v. Daniels, 60 MJ 69 (it is possible
that an individual functioning
as a government agent might own or exercise adequate control over the
property
searched that he or she could lawfully consent to the search).

(implicit
in the
military judge’s ruling that appellant
had a reasonable expectation of privacy in his nightstand drawer is
that his roommates
did not have adequate control of the nightstand to exercise independent
authority to consent).

United States
v. Rodriguez,
60 MJ 239 (after
accused’s brief detention for traffic stop
concluded,
encounter between accused and state trooper was consensual in nature
and not a
seizure subject to Fourth Amendment scrutiny, notwithstanding accused’s
contention that trooper’s request for consent to search his vehicle
initiated a
subsequent detention; accused did not show that after issuing a
citation,
trooper prevented him from leaving, by physically blocking his vehicle,
engaging in questioning, or otherwise signaling to accused that he was
not free
to leave).

(accused’s
initial consensual encounter with
state trooper
during traffic stop evolved into a Fourth Amendment seizure, where
shortly
after accused gave his consent to trooper for a routine search of his
vehicle,
and trooper began his search, between 10 to 12 ATF agents arrived on
the scene
to conduct an intensive search of vehicle, and began questioning him;
under the
circumstances a reasonable person would not have felt free to decline
the
agents’ requests and terminate the encounter).

2003

United
States v. McMahon, 58 MJ 362 (a search of a residence
conducted without a warrant based on probable cause is per se
unreasonable
subject only to a few specifically established and well-delineated
exceptions,
one of which is a search conducted with the resident’s consent).

(consent is valid only
if it is freely and voluntarily given; the determination as to whether
consent is voluntarily given is a question of fact to be determined
from
the totality of all the circumstances; considerations include age,
intelligence,
experience, length of military service, whether the environment was
custodial
or coercive, and knowledge of the right to refuse consent; consent must
be more than acquiescence to a claim of lawful authority; the expressed
object of the search generally defines the scope of the consent).

(the
evidence in the
present case clearly supports the judge’s finding that appellant
validly
consented to the initial search of his residence; in light of the
stated
purpose of the search (to search the house for clues to a woman's
death),
appellant’s calm demeanor, and his apparent understanding of the
agents’
objectives, the military judge did not abuse her discretion in finding
appellant’s consent to have been voluntary and valid).

(while searching pursuant
to appellant’s valid consent, agents found items indicative of criminal
activity, but unrelated to the woman's death and therefore beyond the
scope
of appellant’s consent; the agents promptly stopped their search and
properly
obtained a search authorization from a military magistrate; the search
authorization was for, among other things, items of U.S. Government
property,
including Government-owned CDs; we hold that the magistrate’s search
warrant
authorized an agent to search appellant's binder; the agent was
justified
in opening the binder because it was a place where CDs might reasonably
be kept; once inside the binder, having observed what appeared to be a
falsified award certificate, the agent had probable cause to believe
the
item was contraband or evidence of a crime, and he was authorized under
the plain view doctrine to seize the certificate therein).

(law
enforcement officials
conducting a lawful search may seize items in plain view if the
officials
are acting within the scope of their authority, and they have probable
cause to believe the item is contraband or evidence of a crime).

1999

United
States v. Owens, 51 MJ 204 (prosecution bears burden of
showing consent by clear and convincing evidence as determined by the
totality
of the circumstances; MRE 314(e)(5)).

(in
reviewing consent to search,
appellate court must be satisfied by clear and convincing evidence that
subtle and implicit pressures did not overwhelm appellant’s will;
review
of a military judge’s determination of consent will be deferential, and
the determination will not be overturned unless it is unsupported by
the
evidence or clearly erroneous).

United
States v. Richter, 51 MJ 213 (consent is a question of fact
to be determined from all the circumstances; the prosecution has the
burden
of proving consent by clear and convincing evidence; on appeal, the
evidence
will be reviewed in the light most favorable to the government and a
military
judge’s finding of voluntary consent will not be overturned unless it
is
unsupported by the evidence or clearly erroneous).

(law
enforcement officials
may properly use sting operations and informants in order to gain valid
consent; however, where a third party is used by law enforcement to
tell
a person that law enforcement authorities have a warrant, the
prosecution
cannot establish voluntary consent merely by showing the absence of
direct
communication between law enforcement authorities and the person giving
consent).

United
States v. Richter, 51 MJ 213 (search cannot be justified
as based on consent where that consent was given only after the
official
conducting the search has asserted that he has a warrant; such
purported
consent is mere acquiescence to authority).

(where
appellant was informed
during pretext phone conversation that law enforcement officials had a
warrant to search his home, the mere mention of a warrant or command
authorization
did not vitiate a subsequent consent where that consent was shown,
under
the totality of the circumstances, to be truly voluntary).

United
States v. Vassar, 52 MJ 9 (military judge’s ruling on a
motion to suppress is reviewed for an abuse of discretion, and the
judge
will be reversed if the military judge’s findings of fact are clearly
erroneous
or if the decision was influenced by an erroneous view of the law;
consent
to search is a factual determination that will not be disturbed on
appeal
unless that determination is unsupported by the evidence or clearly
erroneous).

(military
judge erred in evaluating
issue of consent to search if that judge applied the appellate standard
of evaluating conflicts in the evidence in the light most favorable to
the government).

(any
incorrect view of the law
on consent to search held by the military judge was harmless where the
Court found there was no evidence suggesting a lack of consent).

(assuming
that any error in the
military judge’s evaluation of evidence on issue of consent to search
implicates
the Fourth Amendment, the error was harmless beyond a reasonable doubt
where: (1) appellant’s consent was given immediately; (2)
appellant
was aware of his surroundings; (3) the atmosphere was non-coercive and
even light-hearted; (4) first consent form advised appellant of right
to
refuse; (5) second consent form was signed with knowledge that urine
sample
would not be sent to lab without consent; (6) appellant’s statements
reflect
an awareness of the right to refuse consent; (7) appellant did not go
so
far in his testimony as to claim his consent was not voluntary; and (8)
there was no conflicting evidence to resolve).

United
States v. Wright, 52 MJ 136 (responding to a suspect that
one would seek a warrant or authorization to search if consent is not
given
does not foreclose a finding of voluntary consent; this is
significantly
different than telling a suspect falsely that one has a warrant).

(appellant’s consent was not
rendered involuntary by statement that, if appellant did not consent,
law
enforcement agent would get a search warrant where appellant was fully
advised that he had the right to refuse to give consent and he waived
that
right).

Derivative
evidence:

2011 (September Term)

United States v. Dease, 71 M.J. 116 (granting of consent to search may sufficiently attenuate the taint of a prior unlawful search; the threshold question is whether consent is voluntary, without influence of the prior violation; in order to sufficiently attenuate the taint of a prior violation, a court must examine the consent with respect to three factors: (1) the temporal proximity of the illegal conduct and the consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the original unlawful conduct; none of these three factors is dispositive of attenuating the taint of the original wrongdoing, but rather they are examined in aggregate).

(appellant’s consent to search his dormitory room and his subsequent statement to investigators were not sufficiently attenuated from the illegal testing of his urine sample conducted after he withdrew his consent to a urinalysis to make the evidence stemming from the search of his room and his statement admissible as derivative evidence in a drug prosecution; although appellant consented to the search and made the statement two months after he withdrew his consent to the testing of his sample and one month after the test was performed, he consented to the search of his room and gave his statement only a few hours after learning of the test results, there were no intervening circumstances of significance to the investigation between the revocation of his initial consent to the urinalysis and his subsequent consent to search his room, and once he had revoked his initial consent, the government should have known that consent had been withdrawn, and negligently failed to act accordingly).

1999

United
States v. Owens, 51 MJ 204 (because items previously seized
during searches of appellant’s automobile were admissible, there was no
taint to the commander’s authorization to search appellant’s dormitory
room).

United
States v. Marine, 51 MJ 425 (in determining whether evidence
has been derived from illegal police activity and, therefore, is the
fruit
of the poisonous tree, the pertinent inquiry is whether the seizure of
the evidence has been come at by exploitation of that illegality or
instead
by means sufficiently distinguishable to be purged of the primary taint
considering factors such as temporal proximity between the illegality
and
the seizure of the evidence, the presence of intervening circumstances,
and the flagrancy of the official misconduct).

(a
lawful arrest of a person
who was initially illegally detained or seized is an intervening
circumstance
sufficient to dissipate any taint caused by an earlier illegal stop).

(any
taint derived from an initial
improper investigative stop of appellant did not bar admission of
evidence
seized during a subsequent search incident to apprehension where:
(1) there was an intervening lawful apprehension of appellant for
disrespect
which was sufficient to dissipate any taint caused by an earlier
illegal
stop; and (2) any misconduct by guards was not so flagrant as to
warrant
application of the exclusionary rule).

Exclusionary rule:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved; the exclusionary rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity; this has become known as the good-faith exception to the exclusionary rule).

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence).

(the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs).

(the exclusionary rule applied to evidence obtained by the government from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search, where (1) the government’s search of appellant’s cell phone exceeded the servicemember’s private search – that is, where the private search was limited to a few texts, photographs, and one video, and the government searches included tens of thousands of text images, including some deleted texts that were not and could not have been viewed by the servicemember, (2) three times the government investigator consulted a legal office for advice with probable cause in hand, and three times the government proceeded to search appellant’s cell phone without the benefit of a search authorization, and (3) the government ordered the most exhaustive analysis of appellant’s cell phone during trial while the issue of appellant’s Fourth Amendment rights was being litigated before the military judge).

2000

United
States v. Allen, 53 MJ 402 (28 CFR § 60.1 and related
provisions
of AFOSI Regulation 124-82 relating to obtaining the concurrence of an
United States Attorney prior to seeking certain search warrants do not
confer a protection upon the individual accused which is enforceable by
virtue of the exclusionary rule; nor is the failure to coordinate with
the United States Attorney unreasonable conduct by law enforcement
which
would serve to violate any of the accused’s Fourth Amendment
protections).

(although
no warrant was obtained
to seize electronic data stored by an internet service provider which
identified
the date, time, user, and internet site addresses accessed by
appellant,
there is no exclusionary rule under 18 USC § 2703, which is part of
Title II of the Electronic Communications Privacy Act of 1986, “Stored
Wire and Electronic Communications Transactional Records Access”).

Expectations of privacy:

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable).

(the accused had a reasonable expectation of privacy in his cell phone and his expectation was objectively reasonable; every federal court of appeals that has considered the question of cell phone privacy has held there is nothing intrinsic about cell phones that place them outside the scope of ordinary Fourth Amendment analysis).

(in this case, in both a material qualitative and quantitative manner, the government exceeded the scope of the initial private search by a servicemember of appellant’s cell phone; furthermore, the government failed to meet its burden to demonstrate by a preponderance of the evidence that the search of the cell phone was limited to the information provided to the government investigator by the servicemember; that is, the government failed to meet its burden that its initial search of the phone mirrored the servicemember’s private search; although there was some evidence before the court that the servicemember saw various text messages and an accompanying video on the phone that she believed showed inappropriate contact between appellant and some trainees, there was no specific evidence as to what the servicemember actually saw on the phone, and the government investigator engaged in a general search of the phone by scrolling through a number of private texts and did not limit herself to what the servicemember had seen, particularly as the servicemember was not present during the investigator’s search; while appellant’s expectation of privacy had been frustrated by the servicemember viewing a few text messages and an accompanying video on his cell phone, any remaining expectation of his privacy was eliminated when the investigator sent the phone to the county sheriff’s office for forensic analysis and then sent the phone to a computer company for further examination; this final examination revealed over 45,000 text messages, some that would have been viewable by a person in cell phone format as well as deleted items which would not have been viewable to the normal user, thus breaching the remaining portion of appellant’s privacy that had not been frustrated).

(the potential invasion of privacy in a search of a cell phone is greater than in a search of a container in a conventional sense because a cell phone can provide access to a vast body of personal data).

2012 (September Term)

United States v. Kelly, 72 M.J. 237 (official intrusions into areas where there is a reasonable expectation of privacy require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces).

(with respect to the expectations of privacy under the Fourth Amendment during a traditional military inspection, no serviceperson whose area is subject to the inspection may reasonably expect any privacy which will be protected from the inspection).

United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable).

(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable).

(appellant’s command representatives did not violate his Fourth Amendment rights when they entered his off-base apartment without a warrant at the behest of his landlord after appellant stopped paying rent, was in default of his lease agreement, and the landlord discovered unsanitary conditions inside the apartment while checking to see if appellant had abandoned it; although appellant had a reasonable expectation of privacy in his apartment and a “search” under the Fourth Amendment occurred, the Fourth Amendment does not prohibit all warrantless searches, only those that are “unreasonable”; once appellant failed to pay his rent, a reasonable reading of the lease terms permitted the landlord to enter, and once the landlord discovered damages, it was reasonable for him to take action to minimize the damages and seek prompt restitution by the quickest and least intrusive manner, including contacting appellant’s command representatives; and the command representatives acted reasonably where they did not enter for a law enforcement or even a regulatory purpose, but instead entered at the behest of the landlord to effectuate their command functions of protecting appellant’s interests by minimizing possible adverse consequences to appellant, such as loss of his living quarters and overcharging for damages to his apartment, and of maintaining good relations with the local community by assisting a landlord who did not want to pursue civil legal remedies against a military member; by failing to pay his rent, damaging the apartment, and failing to respond to his landlord’s inquiries, appellant significantly diminished his expectation of privacy in the apartment).

(under Texas law, an accused can knowingly and voluntarily contract to allow third parties to enter a space where the accused has a reasonable expectation of privacy).

(where command representatives entered a subordinate’s off-base residence at the behest of the landlord and without a warrant (1) in order to effectuate their command responsibilities, and (2) with no law enforcement purpose and no expectation that a crime had been committed, or that evidence would be found, it would be unreasonable to expect command representatives to seek a warrant prior to entering; where, as here, attempting to obtain a warrant is impracticable, and does not further the purposes of the Fourth Amendment, it is unnecessary to try to get a warrant and the absence of one does not render a search unreasonable).

(where (1) command representatives are performing a command function; (2) a reasonable reading of the lease terms permits the landlord to enter; (3) military officials entered the premises at the behest of the landlord; and (4) the purpose of the entry is not for law enforcement purposes or a mere pretext for conducting a warrantless search, an exception to the warrant requirement because the “search” is reasonable makes eminent sense; under the circumstances of this case, the NCOs intrusion into Appellant’s apartment was not a violation of the Fourth Amendment, and the military judge did not abuse his discretion in refusing to suppress a military aircraft part found in plain view).

United States v. Bowersox, 72 M.J. 71 (the States retain broad power to regulate obscenity; however, that power simply does not extend to mere possession by the individual in the privacy of his own home).

(while servicemembers have a reasonable expectation of privacy in a shared barracks room that protects them from unreasonable government intrusions, one’s privacy interest in a shared barracks room is not coextensive with one’s privacy interest in their home).

(while a servicemember has a reasonable expectation of privacy in the files kept on a personal, password-protected computer for purposes of the Fourth Amendment, that privacy interest is not congruent with the discrete and special privacy interest in one’s home permitting the possession of obscene material in one’s home that was recognized by Stanley v. Georgia, 394 US 557 (1969), and was, in this case, overcome by a lawful warrant authorizing a search for contraband based on probable cause).

(a shared barracks room is not a “home,” for the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home”; Stanley has been limited to its facts, and its holding does not extend to a shared barracks room).

2008 (Transition)

United
States v. Michael, 66 M.J. 78 (it is well
settled that a person retains no
expectation of privacy in abandoned property).

(mislaid
property is
that which is intentionally put into a certain place and later
forgotten; in
this case, the military judge’s findings indicate that under the
circumstances
of its recovery, a laptop computer found in a barracks lavatory could
appropriately have been characterized as mislaid property; while an
owner
retains some expectation of privacy in lost or mislaid property, that
interest
is outweighed by the interest of law enforcement officials in
identifying and
returning such property to the owner; presumably, the owner of valuable
mislaid
property anticipates and hopes that if the mislaid property is found it
will be
turned in to authorities; similarly, he expects that authorities will
make
reasonable efforts to determine the identity of the owner and keep the
property
safe until its return to him).

(resolution
of the
issue of a search of mislaid property necessarily requires a weighing
of the
governmental interests at stake against the constitutionally protected
interest
of the servicemember in the privacy of his effects).

(the
reasonableness of any particular governmental activity does not
necessarily or
invariably turn on the existence of alternative less intrusive means).

(whether
a military
instructor’s search of a mislaid laptop computer was reasonable or
unreasonable
does not hinge on whether less intrusive means were available; rather,
it
depends on whether appellant had a subjective (actual) expectation of
privacy
in the property searched that was objectively reasonable; this in turn
depends,
in part, on the location of the property searched; the threshold of a
barracks/dormitory
room does not provide the same sanctuary as the threshold of a private
room;
the same can be said of a public restroom; the reasonableness of the
search
also depends on the nature and scope of the governmental intrusion).

(in this case, a military
training instructor’s
search of a mislaid laptop computer in order to determine the identity
of its
owner was reasonable at least up to the point that the instructor powered
it up and performed a cursory
examination of folders likely to reveal the owner’s identity; appellant
possessed a diminished
expectation of privacy in his personal computer that was mislaid in a
common
area; further, the legitimate governmental interest in identifying the
owner of
mislaid property and safekeeping it until its return to the owner
outweighed
the interest appellant retained in his mislaid and subsequently found
laptop).

(while military service
necessitates a reduced expectation of privacy in bodily fluids with
respect to
drug testing, servicemembers otherwise generally retain their Fourth
Amendment
right against unreasonable search and seizure).

(there is no indication that
either
Congress, through delegated authority to the President under Article
36, UCMJ,
or the President, through promulgation of MRE 312, intended to abolish
servicemembers’ expectation of privacy in blood drawn in furtherance of
military preparedness).

(in this case, where
appellant had
one vial of blood drawn by medical personnel for the purpose of
treatment and a
second, additional vial drawn at the request law enforcement
authorities so
that they might have the blood tested to identify appellant’s DNA, because the
second vial was not drawn incidental to medical treatment, MRE 312(f)
was not
applicable to it and did not otherwise obviate appellant’s reasonable
expectation of privacy).

(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).

United
States v. Larson, 66 M.J. 212 (the
Fourth Amendment of the Constitution generally requires probable cause for
searches of places and things in which people have a reasonable
expectation of
privacy; in addressing Fourth Amendment privacy claims, the threshold
issue is
whether the person has a legitimate expectation of privacy in the
invaded
place; this inquiry invites a court to address whether the individual
had a
subjective expectation of privacy, and if so whether the subjective
expectation
of privacy is one that society is prepared to accept as reasonable).

(under MRE 314(d), government
property may be searched unless the
person to whom the property is issued or assigned has a reasonable
expectation
of privacy therein at the time of the search; under normal
circumstances, a
person does not have a reasonable expectation of privacy in government
property
that is not issued for personal use; the presumption that there is no
reasonable expectation of privacy in government property is rebuttable;
whether
there is a reasonable expectation of privacy in government property is
determined under that totality of the circumstances, which includes the
rebuttable presumption).

(in this case, the military
judge did not
abuse his discretion in concluding that the government carried its
burden of
establishing that appellant had no reasonable expectation of privacy in
the
government computer; based on the totality of circumstances presented
including
the factors identified below, appellant failed to rebut and overcome
the
presumption that he had no reasonable expectation of privacy in the
government
computer provided to him for official use; there was no evidence that
appellant
had a subjective expectation of privacy in the government computer, and
he did
not testify that he did; moreover, the access to this computer by both
appellant’s
commander and the system administrator supported the validity of the
presumption that he had no reasonable expectation of privacy in the
government
computer; finally, the military judge found as fact that when appellant
used
the computer, a banner appeared that stated that it was a DOD computer,
it was
for official use, not to be used for illegal activity, and that it also
had a
statement that users of the computer consented to monitoring; this
factual
finding was supported by the record, was not clearly erroneous and,
taking the
facts in the light most favorable to the prevailing party, established
both
that appellant was put on notice that the computer was not to be used
for
illegal activity and that there could be third-party monitoring; the
military
judge did not abuse his discretion in concluding that appellant had no
expectation of privacy in the government computer).

2006

United
States v. Long, 64 M.J. 57 (the question of
whether there was a reasonable
expectation of privacy in any search and seizure analysis is resolved
by
examining whether the individual challenging the alleged intrusion had
a
subjective expectation of privacy which was objectively reasonable; if
such an
expectation is established, the inquiry then moves to the remaining
issues
raised by the Fourth Amendment).

(the
determination of the reasonableness of an
expectation of privacy is understood to differ according to context; in
the
context of the government workplace, employees may have a reasonable
expectation of privacy against certain intrusions; however, public
employees’
expectations of privacy in their offices, desks, and file cabinets may
be
reduced by virtue of actual office practices and procedures, or by
legitimate
regulation; the rationale for this suggestion is the efficient and
proper
operation of the agency; thus, an employee’s expectation of privacy
must be
assessed in the context of the employment relation and the operational
realities of the workplace).

(if
the practices
of the workplace establish an
environment where the employee enjoys no reasonable expectation of
privacy, the
protections of the Fourth Amendment would simply not apply; if an
expectation
of privacy is supported by the workplace environment, however, the
analysis
must continue).

(in
the
government workplace, a reasonable
expectation of privacy may not provide the employee with complete
Fourth
Amendment protection; the need for a search warrant based on probable
cause is
not required for legitimate workplace searches conducted by
supervisors; public
employer intrusions on the constitutionally protected privacy interests
of
government employees for noninvestigatory, work-related purposes, as
well as
for investigations of work-related misconduct, should be judged by the
standard
of reasonableness under all the circumstances; while police, and even
administrative enforcement personnel, conduct searches for the primary
purpose
of obtaining evidence for use in criminal or other enforcement
proceedings,
employers most frequently need to enter the offices and desks of their
employees for legitimate work-related reasons wholly unrelated to
illegal
conduct).

(in
examining
Fourth Amendment privacy
interests, the courts look first to whether the individual had a
subjective
expectation of privacy; if the courts ascertain that a subjective
expectation
of privacy exists, they then determine if that expectation is one that
society
is prepared to accept as reasonable).

(the
lower court
was not clearly erroneous in
its determination that the accused had a subjective expectation of
privacy in
the e-mails she sent from her military office computer and in the
e-mails that
were stored on the military government server, where she had a password
known
only to her, the system’s log-on banner described access to “monitor”
the
computer system, not to engage in law enforcement intrusions by
examining the
contents of particular e-mails in a manner unrelated to maintenance of
the
e-mail system, and agency practice recognized the privacy interests of
users in
their e-mail).

(MRE
314(d)
indicates that searches of
government property may be made without probable cause unless an
individual has
a reasonable expectation of privacy in that property and that the
determination
of the reasonableness of an expectation of privacy depends on the facts
and
circumstances at the time of the search).

(privacy
expectations in the workplace may be
reduced by virtue of office practices, procedures, or regulation).

(the accused’s
subjective expectation of
privacy in e-mails that she sent from her HQMC office computer, that
were transmitted
over the HQMC network system, and that were stored on the HQMC server
was
objectively reasonable, where HQMC policies and practices required
individual
users to have passwords known only to themselves and to change their
passwords
periodically to ensure privacy, limited outside network access to the
network
administrator, and described very limited conditions under which the
administrator
would monitor the network for unauthorized use; the accused was
authorized to
use the government computer for personal use and the log-on banner did
not
provide her with notice that she had no right of privacy; rather, the
banner
focused on the idea that her use of the system may be monitored for
limited
purposes; while the log-on banner may have qualified the accused’s
expectation
of privacy in her e-mail, it did not extinguish it; simply put, in
light of all
the facts and circumstance in this case, the “monitoring” function
detailed in
the log-on banner did not indicate to the accused that she had no
reasonable
expectation of privacy in her e-mail; thus, the accused’s expectation
of
privacy was, in fact, recognized as reasonable by virtue of the rules,
regulations, practices, and procedures of HQMC, and her subjective
expectation
of privacy was one which society is prepared to recognize as
reasonable).

2004

United
States v. Daniels, 60 MJ 69 (the Supreme
Court defines a Fourth Amendment
search as a government intrusion into an individual’s reasonable
expectation of
privacy; the Court’s twofold expectation of privacy test asks, first,
whether
the individual by his conduct has exhibited an actual (subjective)
expectation
of privacy and, second, whether the expectation is one that society is
prepared
to recognize as reasonable, or, in other words, whether the
expectation, viewed
objectively, is justifiable under the circumstances).

2003United
States v. Springer, 58 MJ 164 (the Fourth Amendment
to the Constitution states that the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches
and seizures, shall not be violated; however, a Fourth Amendment
violation
occurs only when the government violates a reasonable expectation of
privacy;
a reasonable expectation of privacy exists where a person exhibits an
actual
subjective expectation of privacy and, second, that expectation is one
that society is prepared to recognize as reasonable; what a person
knowingly
exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection; but what he seeks to preserve as
private,
even in an area accessible to the public, may be constitutionally
protected).

(sealed
letters sent
through the postal system are papers within the meaning of the Fourth
Amendment;
courts have also recognized that a reasonable expectation of privacy
generally
exists in the contents of sealed letters sent through the U.S. Postal
System;
however, no reasonable expectation of privacy exists in the information
visible on the outside of an envelope; letters and sealed packages are
as fully guarded from examination and inspection, except as to their
outward
form and weight, as if they were retained by the parties forwarding
them
in their own domiciles).

(application
of the
Fourth Amendment is necessarily fact intensive; a person may have an
objectively
reasonable expectation of privacy in one context, but not another,
based
on small variations in material fact or circumstance; moreover, the
analysis
is multidimensional including consideration of the scope of the search,
the location of the search, and the object searched).

(the
addressee and return
address information on the outside of a sealed letter are not private
because
this information is knowingly exposed to the public; disclosure of this
information is necessary for the delivery of mail and a reasonable
person
has no expectation that it will remain private).

(there
is no reasonable
expectation of privacy in discarded trash left at the curb to be picked
up; while many people would be offended by the notion that someone is
examining
garbage left for collection or letters left for others to deliver to
postal
facilities, a reasonable person is aware of the potential risk and
knows
that what is plainly visible to anyone viewing the outside of an
envelope,
such as address information, is knowingly exposed to the public).

(as
a general rule,
persons joining the armed forces do not forfeit the same reasonable
expectation
of privacy in the contents of their mail enjoyed by the other members
of
American society they serve and protect; however, this general rule is
not blind to circumstance, just as the Fourth Amendment is not absolute
in application, but adjusts to that which society, as measured through
our courts, is prepared to accept as objectively reasonable in the
context
presented).

(under
the circumstances
of this case, where appellant left a letter at the informal outgoing
mail
area on the front office desk of a trainee dormitory, appellant may
have
had a subjective expectation of privacy in the contents of his letter
that
were visible through the envelope, but such an expectation was not
objectively
reasonable; if appellant had desired to afford his letter greater
protection,
he could have mailed the letter himself or used a thicker, more opaque
envelope; by failing to do so, he took the risk that others would see
the
information that was visible through the envelope; the contents at
issue
here were seen with the naked eye by a person who was not unlawfully
viewing
the outside of the letters and had reason to consider the envelope
further
after seeing appellant’s name in light of the command policy on social
contact with trainees; therefore, this Court holds based on the facts
of
this case, that appellant’s expectation of privacy in the parts of his
letter that were readily visible to the naked eye through the envelope
was not one that society would recognize as reasonable).

(based on the facts
of this case, including appellant’s voluntary decision to place his
letter
on the office table for someone else to mail, a quick inspection and
detention
of the letter by another service member who worked in the office did
not
amount to a seizure within the meaning of the Fourth Amendment;
appellant
did not have a sufficient possessory interest in the letter at the time
of its inspection, nor was the detention of sufficient duration to
amount
to a seizure).

2002United
States v. Pinson, 56 MJ 489 (even though two allegedly
privileged
documents were used to analyze appellant’s handwriting, an individual
has
no expectation of privacy in his handwriting).

United
States v. Khamsouk, 57 MJ 282 (status as an overnight guest is
alone enough to show that an individual had an expectation of privacy
in
the home that society is prepared to recognize as reasonable; the
overnight
guest has a sufficient interest in another’s home and therefore, is
protected
from a warrantless arrest in that home under the Fourth Amendment).

2000United
States v. Monroe, 52 MJ 326 (based on totality of
circumstances,
appellant had no reasonable expectation of privacy in electronic mail
messages
or an electronic mail box where: (1) the computer system was
owned
by the government; (2) there was specific notice that users consented
to
monitoring; and, (3) once received by the government system, there was
a risk that government officials with access to the network would
access
the electronic mail).

(government
computer system operators
did not act illegally in disclosing electronic mail to criminal
authorities
where appellant had no reasonable expectation of privacy in mail within
government computer system and where that mail had been opened
inadvertently
by system operators while troubleshooting the problems the mail
messages
had created within the computer system; see 18 USC § 2702(b)).

Unite
States v. Allen, 53 MJ 402 (court does not address whether
stored logs of transactional records of an internet service provider
without
any accompanying text are such that an accused has a subjective
expectation
of privacy that society is willing to recognize).

United
States v. Tanksley, 54 MJ 169 (seizure of a document displayed
on appellant’s computer screen did not violate appellant’s right to be
free from unreasonable searches and seizures; appellant had, at best, a
reduced expectation of privacy in the government office he occupied; in
addition, appellant forfeited any expectation of privacy he might have
enjoyed by leaving the document in plain view on a computer screen in
an
unsecured room; finally, the document was exculpatory and not used at
trial,
did not reveal confidential information about defense strategy, and
produced
no information or leads not otherwise known to the government).

1999

United
States v. Owens, 51 MJ 204 (where item of stolen property
was voluntarily surrendered by appellant’s roommate, appellant’s Fourth
Amendment rights were not violated because appellant had no reasonable
expectation of privacy in his roommate’s portion of the room or his
roommate’s
property; MRE 311(a)(2)).

Good
faith exception:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved; the exclusionary rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity; this has become known as the good-faith exception to the exclusionary rule).

(the military good-faith exception rule, found in MRE 311, provides that evidence that was obtained as a result of an unlawful search or seizure may be used if: (1) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under MRE 315(d) or from a search warrant or arrest warrant issued by competent civilian authority, (2) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause, and (3) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant; good faith is to be determined on an objective standard).

(in this case, where the individual issuing the authorization did not have a substantial basis for determining the existence of probable cause, a requirement for application of the good-faith exception was missing, and consequently, the good-faith exception could not be used to justify the search and seizure).

2000

United
States v. Monroe, 52 MJ 326 (even if probable cause
determination
lacked substantial basis, evidence seized would still be admissible
under
the good faith exception of MRE 311(b)(3) where: (1) there was no
suggestion that investigator acted with other than objective good faith
in seeking and executing search authorization; (2) investigator sought
legal advice throughout investigation; (3) investigator showed
restraint
in not searching appellant’s work area when it became obvious that no
evidence
would be found there; (4) investigator fully disclosed the sources of
his
information, and there was no reason to view his affidavit as deficient
on its face; (5) there was no indication that authorizing official
abandoned
his judicial role; and, (6) there was no indication that the
authorization
was facially deficient).

United
States v. Henley, 53 MJ 488 (even if magistrate did not have
a substantial basis for concluding that a search of appellant’s home
would
uncover evidence of wrongdoing, evidence was nonetheless admissible
under
good faith exception where: officers reasonably believed they
were
executing a valid warrant; officers did not act outside scope of
warrant;
and items seized were encompassed by the description in the warrant).

1999

United
States v. Carter, No. 00-0314 (a "good faith" exception to the
exclusionary rule exists in cases where the official executing the
warrant
relied on the magistrate’s probable cause determination and the
technical
sufficiency of the warrant, and that reliance was objectively
reasonable).

(a
"good faith" exception to the
exclusionary rule will not apply where: (1) the magistrate was misled
by
information in an affidavit that the affiant knew was false or would
have
known was false except for his reckless disregard of the truth; (2) the
magistrate wholly abandoned his judicial role or was a mere rubber
stamp
for the police; (3) where the warrant was based on an affidavit so
lacking
in indicia of probable cause as to render official belief in its
existence
entirely unreasonable; and (4) the warrant is so facially deficient
that
the executing officers cannot reasonably presume it to be valid).

(Mil.
R. Evid. 311(b)(3) contains
the good faith exception to the exclusionary rule, and the rule does
not
establish a more stringent rule than was established in United States
v. Leon, 468 U.S. 897 (1984), did for civilian courts;
specifically,
the phrase "substantial basis" used as the second element of good faith
in the rule examines the affidavit and search authorization through the
eyes of a reasonable law enforcement official executing the search
authorization,
and is satisfied if the law enforcement official had an objectively
reasonable
belief that the magistrate had a "substantial basis" for determining
the
existence of probable cause).

(even
if probable cause was lacking
because of the failure to establish a nexus with appellant’s home, the
breadth of the information in the affidavit justified the inference
that
the material sought would be at appellant’s residence, and application
of the good faith exception seems appropriate).

Inevitable discovery:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (normally, the fruits of a search or seizure that violates the Fourth Amendment are inadmissible; notwithstanding the invalidity of a seizure, however, the inevitable discovery doctrine provides an exception to the exclusionary rule, allowing admission of evidence that, although obtained improperly, would have been obtained by another lawful means).

(to take advantage of the inevitable discovery doctrine, the prosecution must establish, by a preponderance of the evidence, that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence and that the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred).

(in this case, there is no evidence that, at the time of the seizure, the government agents possessed or were actively pursuing leads that would have inevitably led to discovery of child pornography images on digital media in appellant’s barracks room by lawful means; the assumption that the investigators could have lawfully frozen the scene at appellant’s barracks room and pursued a command authorization based on probable cause is unjustified; freezing the scene to procure a command authorization requires probable cause or exigent circumstances; the government did not argue and the record did not contain any exigent circumstances justifying freezing the scene; moreover, the government failed to establish that the investigators had probable cause to believe that child pornography or evidence of the alleged offenses would be found on appellant’s computer equipment; the government failed to establish a nexus between appellant’s alleged attempt to entice children on the street to commit sex acts and the possession of child pornography on his digital media; under the circumstances of this case, there was no direct link shown between acts such as child molestation or enticement and possession of child pornography; consequently, there were insufficient facts to provide a substantial basis for concluding that there was probable cause to believe appellant possessed child pornography; without probable cause, the inevitable discovery doctrine failed).

2014 (September Term)

United States v. Keefauver, 74 M.J. 230 (the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant).

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (for the doctrine of inevitable discovery to apply, the government has to demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner; mere speculation and conjecture as to the inevitable discovery of the evidence is not sufficient when applying this exception; this exception is only applicable when the routine procedures of a law enforcement agency would inevitably find the same evidence; moreover, the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant).

(in this case, the doctrine of inevitable discovery did not apply where the government failed to meet its burden of showing that the evidence it obtained from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search would have been inevitably discovered by lawful means, particularly in the absence of information as to the extent of the initial private search by the servicemember; because the record did not indicate what the government investigator reviewed and the extent to which that review mimicked the servicemember’s own private review, what the government may have inevitably discovered in the course of investigation, absent the additional searches of appellant’s cell phone, is unknown; in addition, the government failed to present compelling evidence that it would have sought a warrant; finally, the government failed to meet its burden of demonstrating that the routine procedures of the law enforcement agency would inevitably have found the same evidence).

2011 (September Term)

United States v. Dease, 71 M.J. 116 (the doctrine of inevitable discovery is an exception to the exclusionary rule of the Fourth Amendment; MRE 311(b)(2) codifies this doctrine, stating that evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made).

(the doctrine of inevitable discovery did not apply to the warrantless analysis of appellant’s urine after he withdrew his consent to a urinalysis, absent probable cause to suspect evidence of illegal drug use in appellant’s urine or any parallel investigation that would have led to the discovery of the evidence; although appellant and his vehicle were seen in an area of known narcotic trafficking accompanied by a stranger who appeared to purchase narcotics, appellant was a clean confidential source who had been recruited to act as an undercover agent during an ongoing drug investigation; as a result, the military judge did not abuse his discretion in concluding that the urinalysis evidence would not have been subject to inevitable discovery).

2008 (Transition)

United
States v. Wallace, 66 M.J. 5 (the doctrine of
inevitable discovery creates an
exception to the exclusionary rule allowing admission of evidence that,
although obtained improperly, would have been obtained by another
lawful means;
MRE 311(b)(2) embodies this exception, stating that evidence that was
obtained
as a result of an unlawful search or seizure may be used when the
evidence
would have been obtained even if such unlawful search or seizure had
not been
made).

(in this
case, the military judge correctly
denied a defense motion to suppress the results of a search of
appellant’s
computer; while appellant’s ultimate acquiescence to the seizure came
under
pressure from authority, no error occurred in the military judge’s
denial
because investigators would have inevitably discovered the images of
child
pornography on appellant’s computer hard drive pursuant to a validly
executed search
authorization based on probable cause; during his interrogation,
appellant had
admitted to a sexual relationship with a young girl with whom he
communicated
mostly via email and instant messenger; this alone encouraged
investigators to
focus on his computer as a source of evidence and created sufficient
probable
cause to allow the investigators to obtain an authorization to search
for and
seize emails and messages between appellant and the girl on his
computer;
though the authorization would have been limited to emails and
messages, the
forensic software employed would have skimmed the computer’s hard
drive,
recovering all saved data; investigators would have had to sift through
all the
captured data to find relevant email traffic; as such, the files
containing
child pornography would have been inevitably discovered through this
valid
search).

2000

United
States v. Allen, 53
MJ 402 (court finds that stored logs of transactional
records of an internet service provider without any accompanying text
would
have inevitably been obtained pursuant to a warrant where there was
nothing
to show that officers would not have obtained such a warrant had the
internet
service provider not indicated that it had authority to turn over the
records).

1999

United
States v. Owens, 51
MJ 204 (when the routine procedures
of a law enforcement agency would inevitably find the same evidence,
the
rule of inevitable discovery applies even in the absence of a prior or
parallel investigation; MRE 311(b)(2)).

Investigatory
stop:

2004

United States
v. Rodriguez,
60 MJ 239 (Fourth
Amendment seizure was an investigatory
detention
rather than an arrest, where there was no evidence that the ATF agents
brandished their weapons or handcuffed accused, or that accused was
prevented
from speaking to his passengers).

(investigatory detention was supported by
reasonable
suspicion that accused was transporting one or more handguns for
unlawful
resale where surveillance indicated a pattern of apparent straw
purchases of
handguns by accused and co-actor during days preceding the stop, and
ATF had
received a tip from a confidential informant that accused would be
traveling to
New York, suggesting to agents the possibility of interstate transport
and sale
of the guns).

2003

United
States v. Robinson, 58 MJ 429 (an investigative stop
of an individual is permissible under the Fourth Amendment where a
police
officer observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot;
similarly,
an investigative stop of a motor vehicle is constitutionally
permissible
where there is reasonable suspicion that the occupants are engaged in
wrongdoing;
based on the totality of the circumstances, the detaining officers must
have a particularized and objective basis for suspecting the particular
person stopped of criminal activity).

(the
concept of particularized
suspicion has two elements; the first element is that the assessment
must
be based upon all the circumstances; the second element of the
particularized
suspicion required is that the process just described must raise a
suspicion
that the particular individual being stopped is engaged in wrongdoing).

(the
factual basis for
reasonable suspicion must be more than a mere hunch; however, it need
not
rise to the level of probable cause, and it falls considerably short of
a preponderance of the evidence).

(in
considering the
totality of the circumstances, the detaining officer may consider a
series
of acts which are innocent in themselves, but which, taken together,
warrant
further investigation; while mere presence in a high-crime area,
standing
alone, is insufficient for reasonable suspicion, it is a relevant
contextual
consideration; unprovoked flight is not necessarily indicative of
wrongdoing,
but it is certainly suggestive of such; evasive behavior is a relevant
consideration; the fact that a vehicle appears out of place is
relevant;
and finally, the time of day is relevant).

(the
facts found by
the military judge were sufficient to establish reasonable suspicion
for
an investigative stop of appellant's vehicle where the police officer
twice
observed appellant's vehicle in a high crime area at an unusual time,
where
appellant’s vehicle was out of place and appellant’s presence was
unusual,
and where appellant made a sudden turn into an unpaved alley that was
(1)
evasive, (2) an indicator of impaired driving, and (3) unusual because
it was a sudden turn into an alley that was not a customary roadway).

1999

United
States v. Richter, 51 MJ 213 (reasonable suspicion justifying
an investigative stop under MRE 314(f)(1) existed where: (1)
agents
received information that appellant had taken a government-owned
bicycle
for personal use; (2) appellant had been observed loading tents into a
privately owned vehicle; (3) a medical cabinet surrendered to law
enforcement
reportedly came from appellant; and (4) after a pretext phone call
appellant
was observed loading a large box into his truck and driving toward the
gate).

Neutral
and detached:

2009 ( September Term)

United
States v. Clayton, 68 M.J. 419 (determinations
of probable cause made by a
neutral and detached magistrate are entitled to substantial deference).

1999

United
States v. Hall, 50
MJ 247(officer did not loose neutrality
by re-entering room to corroborate information supporting probable
cause;
such conduct is not reflective of a foul motivation or vindictiveness).

Plain view:

1999

United
States v. Richter,
51 MJ 213 (once officers make a valid
investigative stop, it is not a violation of the Forth Amendment for
them
to observe items in plain view).

Probable cause:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable).

(an impartial commander who has control over the place where the property to be searched is situated is authorized to issue a search authorization, based upon probable cause; probable cause to search exists when, based on written and oral statements and information as may be known by the authorizing official that would not preclude the official from acting in an impartial fashion, there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched; a valid search authorization requires the impartial authorizing official to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place; in dealing with probable cause, as the very name implies, probabilities are deal with; these are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act; the authorizing official is free to draw reasonable inferences from the material supplied by those applying for the authority to search).

2009
(September Term)

United
States v. Huntzinger, 69 M.J. 1 (a military
commander may authorize
a search based upon probable cause with respect to persons or property
under
the control of the commander in accordance with MRE 315(d)(1).

(MRE 315(d) provides that a
person
authorizing a probable cause search must be an impartial individual;
the
evaluation of impartiality includes consideration of whether a
commander’s
actions call into question the commander’s ability to review
impartially the
facts and circumstances of the case; to the extent that appellate case
law has
indicated that a commander acting as a law enforcement official with a
police
attitude may be disqualified from authorizing a search, the
disqualification
applies when the evidence demonstrates that the commander exhibited
bias or
appeared to be predisposed to one outcome or another; the participation
of a
commander in investigative activities in furtherance of command
responsibilities, without more, does not require a per se
disqualification of a
commander from authorizing a search under MRE 315; in that regard, a
commander’s direction to take reasonable investigative steps to
ascertain the
facts prior to making an impartial probable cause decision does not
disqualify
the commander from issuing a search authorization under MRE 315).

(MRE 315(f)(2) defines
probable
cause as a reasonable belief that the person, property, or evidence
sought is
located in the place or on the person to be searched).

(in this case, the search of
the
accused’s computer during an investigation of child pornography was
supported
by probable cause, where the accused was one of a small number of
individuals
who had shared music files with another individual who later passed on
these
files to another soldier and both discovered a suspected video clip of
child
pornography on their computers).

United
States v. Clayton, 68 M.J. 419 (MRE 315(f)(2)
defines probable cause as a
reasonable belief that the person, property, or evidence sought is
located in
the place or on the person to be searched).

(determinations of probable
cause made by a
neutral and detached magistrate are entitled to substantial deference).

(probable cause determinations
are inherently
contextual, dependent upon the specific circumstances presented as well
as on
the evidence itself; probable cause is founded not on the determinative
features of any particular piece of evidence provided an issuing
magistrate,
but rather upon the overall effect or weight of all factors).

(in a particular case, the
contextual
circumstances bearing upon the determination of whether there was
probable
cause to issue a search warrant may involve the timing of the
determination and
the nexus between the alleged criminal activity and the place searched;
the
question of timing focuses on the information presented to the search
authority, as well as information known by the search authority, at the
time
the decision to search was made; the question of nexus focuses on
whether there
was a fair probability that contraband or evidence of a crime will be
found in
a particular place; the nexus between the items to be seized and the
place to
be searched need not be based on direct observation but can be inferred
from
the facts and circumstances of a particular case; determinative factors
include
the type of crime, the nature of the items sought, the extent of the
suspect’s
opportunity for concealment, and normal inferences as to where a
criminal would
likely hide the property).

(the information provided to a magistrate that
included (1) appellant’s membership in a website group,
“Preteen-Bestiality-and-Anything-Taboo,” (2) the group’s use of the
website to
share child pornography and exploitation information, as admitted by
other
group members who had been arrested, (3) appellant’s request for digest
notification, which enabled him to receive up to 25 postings
automatically each
day from the group to the e-mail account bearing his name, (4) the fact
that
the e-mail account bearing his name had been accessed by a government
computer
in Kuwait, and (5) the fact that appellant, who was stationed in
Kuwait, had
been provided with a laptop computer by the Army, was sufficient to
support a
practical, commonsense decision by the magistrate that there was a fair
probability that contraband would be located in appellant’s quarters in
view of
the ease with which laptop computers are transported from work to home
and the
ease with which computer media may be replicated on portable devices;
thus, the
evidence seized pursuant to the search warrant issued by the magistrate
did not
have to be suppressed, even though the evidence before the magistrate
did not
show that appellant had posted messages to the website, participated in
discussions, or uploaded or downloaded child pornography and did not
indicate
how long he belonged to the group, how often he accessed the website,
or
whether he received the digests he requested).

United
States v. Cowgill, 68 M.J. 388 (a military
judge would not abuse her
discretion when denying a motion to suppress evidence from appellant’s
home if
the magistrate who issued the search warrant had a substantial basis
for
determining that probable cause existed; probable cause exists when
there is
sufficient information to provide the authorizing official a reasonable
belief
that the person, property, or evidence sought is located in the place
or on the
person to be searched).

(in accordance with MRE
311(g)(2), at a
hearing reviewing whether probable cause existed for a search warrant,
the
defense has the burden of establishing by a preponderance of the
evidence the
allegation of knowing and intentional falsity or reckless disregard for
the
truth).

(erroneous information in a
civilian police
officer’s search warrant affidavit, based on his conversation with an
OSI
agent, was provided to a civilian magistrate with reckless disregard
for the
truth and could not be considered in determining whether the warrant to
search appellant’s
home for drugs was supported by probable cause, where the officer
failed to
first validate the affidavit and its contents with the OSI, even though
he did
not have direct contact with the confidential informant mentioned in
the
affidavit, have information regarding the nature of the informant,
including
his military status, or have information about an allegedly
corroborative
urinalysis drug test).

(probable cause relies on a
common-sense
decision whether, given all the circumstances, there is a fair
probability that
contraband will be found).

(search of appellant’s home
pursuant to a
magistrate’s search warrant was supported by probable cause, even
absent
erroneous corroboration indicating that a positive urinalysis test was
conducted as the result of a confidential informant’s information,
where the
supporting affidavit included the police officer’s statements about his
conversation with an OSI agent that the informant was reliable, a
description
of the statements from the informant, and verification of appellant’s
address
along with confirmation of the description of appellant’s home as
provided by
the informant, where the informant had described witnessing appellant
along
with his roommate smoke marijuana, the drug paraphernalia they used to
do so, and
the persistent smell of drugs in appellant’s home, and where
appellant’s
roommate had failed a drug test during the time that the informant
asserted the
drug use was occurring; based on the totality of the circumstances, the
military judge did not abuse her discretion in admitting the evidence
seized
from appellant’s home; while the drug test was not recent, it was not
stale for
the purposes of corroborating the informant’s statement with respect to
appellant’s generalized use of marijuana over a six-month period; in
addition,
the police officer’s verification of appellant’s address confirmed the
source’s
description of the home and the source’s incriminating statements were
specific
as to time and granular as to deed).

2008
( September Term)

United
States v. Macomber, 67 M.J. 214 (probable cause
to search exists when there is
a reasonable belief that property or evidence sought is located in the
place or
on the person to be searched).

(the search authority is
required to make a
probable cause determination based on the
totality-of-the-circumstances).

(a probable cause
determination is a
practical, common-sense decision whether, given all the circumstances
set forth
in the affidavit before the search authority, there is a fair
probability that
contraband or evidence of a crime will be found in a particular place).

(probable
cause
deals with probabilities; it is not a technical standard, but rather is
based
on the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act; probable cause
requires
more than bare suspicion, but something less than a preponderance of
the
evidence; thus, the evidence presented in support of a search need not
be
sufficient to support a conviction, nor even to demonstrate that an
investigator’s belief is more likely true than false; there is no
specific
probability required, nor must the evidence lead one to believe that it
is more
probable than not that contraband will be present; probable cause is
founded
not on the determinative features of any particular piece of evidence
provided
an issuing magistrate, but rather upon the overall effect or weight of
all
factors presented to the magistrate).

(timeliness
informs
probable cause to search; the passage of time may diminish the
likelihood that
what is sought will be found in the place to be searched).

(whether too long a
period has elapsed from the time the facts are obtained until the
search is
authorized depends on many factors, including, but not limited
to, the
location to be searched, the type of crime involved, the nature of the
articles
to be seized, and how long the crime has been continuing).

United
States v. Rogers, 67 M.J. 162 (a military
judge reviews a magistrate’s
decision to issue a search authorization to determine whether the
magistrate
had a substantial basis for concluding that probable cause existed).

(a magistrate has a
substantial basis to issue
a warrant when, based on the totality of the circumstances, a
common-sense
judgment would lead to the conclusion that there is a fair probability
that
evidence of a crime will be found at the identified location).

(in light of the constitutional preference for
warrants, substantial deference is afforded in cases where a magistrate
determines that probable cause exists).

(an affidavit containing a
witness’s account
of appellant’s alleged cocaine use provided probable cause for a search
authorization permitting the seizure of appellant’s hair for drug
testing,
where the witness stated that she had seen appellant use cocaine in his
home,
the witness was aware of appellant’s prior court-martial charges and
described
a scar on his stomach, which were not matters of general knowledge
within the
squadron, the witness promptly reported the incident to her chain of
command
and her statements remained consistent, and a forensic science
consultant
confirmed that appellant’s hair would reveal cocaine use if he was a
chronic
user; accordingly, despite some other circumstances that undercut a
finding of
probable cause, the military judge did not abuse his discretion in
upholding
the search authorization in this case; a sufficient nexus existed
between the
alleged crime and the seizure of appellant’s hair; as such, sufficient
facts
existed to support a reasonable belief that testing appellant’s body
hair would
yield evidence of his use of cocaine).

(even though some circumstances existed in
this case that undercut a finding of probable cause, close calls are to
be
resolved in favor of sustaining the magistrate’s decision to issue a
search
authorization).

2007

United States v. Leedy, 65 M.J. 208 (where a
magistrate had a substantial basis to find probable cause, a military
judge would not abuse his discretion in denying a motion to suppress).

(at
its core, the probable
cause that a magistrate must find to authorize a search requires a
factual demonstration or reason to believe that a crime has or will be
committed; as the term implies, probable cause deals with
probabilities; it is not a technical standard, but rather is based on
the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act; probable cause
requires more than bare suspicion, but something less than a
preponderance of the evidence; thus, the evidence presented in support
of a search need not be sufficient to support a conviction, nor even to
demonstrate that an investigator’s belief is more likely true than
false; there is no specific probability required, nor must the evidence
lead one to believe that it is more probable than not that contraband
will be present).

(probable cause
determinations are inherently contextual, dependent upon the specific
circumstances presented as well as on the evidence itself; indeed,
probable cause is founded not on the determinative features of any
particular piece of evidence provided an issuing magistrate -- nor even
solely based upon the affidavit presented to a magistrate by an
investigator wishing search authorization -- but rather upon the
overall effect or weight of all factors presented to the magistrate).

(the
facts set forth in an
affidavit presented by an investigator to a magistrate to obtain a
search authorization of appellant’s computer that included his
roommate’s observation of a file entitled “14 year old Filipino girl”
in a list of files on appellant’s computer, some of which mentioned
ages and some of which mentioned acts, which led the roommate to
believe the files in question contained pornography, were sufficient,
when assessed through the lens of the circumstances under which the
magistrate came to know this information – including the investigator’s
experience investigating child pornography and the magistrate’s own,
independent analysis of the facts – to provide a substantial basis for
a magistrate to conclude that there was a fair probability that child
pornography would be found on appellant’s computer, even though the
affidavit did not contain any description of the substance of the
images suspected to depict pornography and even though the roommate’s
observations were one month old).

2006

United
States v. Long, 64 M.J. 57 (official
intrusions into protected areas in
the military require search authorization supported by probable cause,
unless
they are otherwise lawful under the Military Rules of Evidence or the
Constitution of the United States as applied to members of the armed
forces).

(the
need for a
search warrant based on probable
cause is not required for legitimate workplace searches conducted by
supervisors; public employer intrusions on the constitutionally
protected
privacy interests of government employees for noninvestigatory,
work-related
purposes, as well as for investigations of work-related misconduct,
should be
judged by the standard of reasonableness under all the circumstances;
while
police, and even administrative enforcement personnel, conduct searches
for the
primary purpose of obtaining evidence for use in criminal or other
enforcement
proceedings, employers most frequently need to enter the offices and
desks of
their employees for legitimate work-related reasons wholly unrelated to
illegal
conduct).

(MRE
314(d)
indicates that searches of
government property may be made without probable cause unless an
individual has
a reasonable expectation of privacy in that property and that the
determination
of the reasonableness of an expectation of privacy depends on the facts
and circumstances
at the time of the search).

(while
government
employers may need to enter
an employee’s office space or intrude into an employee’s computer or
e-mail
account for work-related reasons, searches conducted for the primary
purpose of
obtaining evidence of illegal conduct require probable cause).

(because the
search for e-mails in this case went
beyond work-related monitoring or an investigatory search of
work-related
misconduct, it was not one exempt from the probable cause requirement;
thus, to
be admissible, the evidence obtained in the search must have been
pursuant to
authorization; because there was no command authorization, the evidence
should
have been suppressed).

2005

United
States v. Bethea, 61 M.J. 184 (probable cause to search exists when
there
is a reasonable belief that the person, property, or evidence sought is
located
in the place or on the person to be searched; the test for probable
cause is
whether, under the totality of the circumstances, the magistrate had a
substantial basis for determining that probable cause existed; a
probable cause
determination is a practical, common-sense decision whether, given all
the
circumstances set forth in the affidavit before him, including the
veracity and
basis of knowledge of persons supplying hearsay information, there is a
fair
probability that contraband or evidence of a crime will be found in a
particular place).

(probable cause is a flexible,
common-sense standard; a probable cause determination merely requires
that a
person of reasonable caution could believe that the search may reveal
evidence
of a crime; it does not demand any showing that such a belief be
correct or
more likely true than false; so even though people often use ‘probable’
to mean
‘more likely than not,’ probable cause does not require a showing that
an event
is more than 50% likely).

(a
substantial
basis existed for finding probable cause to support a military
magistrate’s
authorization to seize appellant’s hair to test it for evidence of drug
use
where the affidavit before the magistrate indicated (1) a positive
urinalysis
result from appellant consistent with, though not necessarily
indicative of,
multiple uses of cocaine, and (2) information that an analysis of
appellant’s
hair would detect multiple uses of cocaine; it was as likely as not
that
evidence of drug use would be found in appellant’s hair, and that
degree of
likelihood more than satisfies the probable cause standard).

2004

United
States v. Mason, 59 MJ 416 (nonconsensual extraction
of blood
from an individual may be made pursuant to a valid search
authorization,
supported by probable cause).

(probable
cause
to search exists when there is a reasonable belief that the person,
property,
or evidence sought is located in the place or on the person to be
searched; a
probable cause determination is precisely a practical, common-sense
decision
whether, given all the circumstances set forth in the affidavit before
a
magistrate, including the veracity and basis of knowledge of persons
supplying
hearsay information, there is a fair probability that contraband or
evidence of
a crime will be found in a particular place).

(probable
cause
deals with probabilities; these are not technical; they are the factual
and
practical considerations of everyday life on which reasonable and
prudent men,
not legal technicians, act).

(in
reviewing a
probable cause determination, the duty of a reviewing court is simply
to ensure
that the magistrate had a substantial basis for concluding that
probable cause
existed; importantly, a determination of probable cause by a neutral
and
detached magistrate is entitled to substantial deference; resolution of
doubtful or marginal cases should be largely determined by the
preference for
warrants; close calls will be resolved in favor of sustaining the
magistrate's
decision; a grudging or negative attitude by reviewing courts towards
warrants
is inconsistent with the Fourth Amendment's strong preference for
searches
conducted pursuant to a warrant).

(in
reviewing a
probable cause determination, courts should consider the information
made known
to the authorizing official at the time of his decision which must be
considered in the light most favorable to the prevailing party; the
magistrate
could also consider information known to her personally; thus, the key
inquiry
is whether all the information presented in the affidavit or orally by
a
witness or known to the magistrate personally, considered cumulatively,
was
sufficient to show a fair probability that evidence of a crime would be
found
in the place to be searched; courts should not invalidate the warrant
by
interpreting the affidavit in a hypertechnical, rather than a
commonsense,
manner).

(we
hold that
the magistrate had probable cause to issue the search authorization for
appellant’s blood; the information based on which the magistrate issued
the
search authorization, considered cumulatively, supported a reasonable
belief
that evidence of a crime, in the form of DNA, would likely be found in
appellant – who had the physical features and blood type of the rapist,
who was
known to have owned gloves similar to those left at the crime scene,
who lived
near the victim, and who was identified as the owner of a car seen near
the
crime site at the same time of day as the crime, albeit almost two
months
later, thus giving appellant perhaps an opportunity to have been at the
scene
that day).

(for
an accused
to receive a hearing, and therefore potential relief, on the grounds
that
information allegedly omitted from an affidavit would have extinguished
probable cause had that information been included, the defense must
demonstrate
that the omissions were both intentional or reckless, and that their
hypothetical inclusion would have prevented a finding of probable
cause;
indeed, even if a false statement or omission is included in an
affidavit, the
Fourth Amendment is not violated if the affidavit would still show
probable
cause after such falsehood or omission is redacted or corrected).

(in
this case,
appellant failed to meet his substantial burden to show that the
information
allegedly omitted from the affidavit would have extinguished probable
cause had
that information been included; even if the omitted information had
been
included in the affidavit, none of it would have prevented a finding of
probable cause).

2002

United
States v. Cravens, 56 MJ 370 (special agent’s
state of
mind, i.e., did he knowingly and intentionally, or with
reckless
disregard for the truth, mislead the military magistrate, was a
question of
fact for the trial judge, was resolved adversely to the defense, and
that
finding supported by evidence in the record; the military judge’s
factfinding
as to state of mind was not shown to be clearly erroneous).

(legally sufficient basis for finding probable cause, as defined in
Mil.R.Evid. 315(f)(2), existed where: (1) there was evidence appellant
admitted
using drugs to a police officer on April 1, 1997; (2) there was
evidence that
appellant exhibited a demeanor consistent with drug use at that time;
and (3)
there was evidence presented to the military magistrate that drug
metabolites
can be detected in hair samples after approximately seven (7) days of
ingestion
and will remain present as long as the hair remains).

2001

United
States v. Carter, 54 MJ 414 (in reviewing probable
cause
determinations, courts must look at the information made known to the
authorizing official at the time of his decision; the evidence must be
considered in the light most favorable to the prevailing party).

(the duty of a court reviewing a probable cause determination is
simply to
ensure that the magistrate had a substantial basis for concluding the
probable
cause existed; such a determination by a neutral and detached
magistrate is
entitled to substantial deference; resolution of doubtful or marginal
cases
should be largely determined by the preference for warrants with close
calls
being resolved in favor of sustaining the magistrate’s decision).

(although a probable cause determination by a neutral and detached
magistrate is entitled to substantial deference, there are three
exceptions to
this rule of deference: (1) the deference accorded to a magistrate’s
finding of
probably cause does not preclude inquiry into the knowing or reckless
falsity of
the affidavit on which that determination was based; (2) the magistrate
must
perform his neutral and detached function and not serve merely as a
rubber
stamp for the police; and (3) reviewing courts will not defer to a
warrant
based on an affidavit that does not provide the magistrate with a
substantial
basis for determining the existence of probable cause).

United
States v. Gallo, 55 MJ 418 (even if court assumed
that
appellant’s unwarned response that he owned a personal computer was
improperly
included in an affidavit for a search warrant, such misstatements or
improperly
obtained information can be severed from the affidavit, and the
remainder
examined to determine if probable cause still exists).

(conclusory statements should not be in an affidavit requesting a
search
warrant; however, the review process deals with the question of
probability and
the issue is whether there was a “substantial basis” upon which the
federal
magistrate judge could have found probable cause to believe a search of
a given
place would uncover the evidence sought).

(as to timeliness of information presented in support of a request
for a
search warrant, information more than 6 months old when seeking
pornography on
a computer or a hard drive has been allowed).

(information offered in support of a request for a search warrant
must
establish a nexus between the evidence sought and the place to be
searched;
however, a gap in the nexus may be filled in based on the affiant’s
experience,
allowing the issuing official and appellate courts to (1) consider the
conclusion of an experienced law enforcement officer regarding where
evidence
of a crime is likely to be found and (2) draw reasonable inferences
about where
evidence is likely to be kept, based on the nature of the evidence and
the type
of offense).

(in addition to the affiant’s experience and conclusions drawn
therefrom,
numerous factors bolstered the probability that child pornography would
be
found in appellant’s home and those factors also supported the
inference that
the additional pornographic materials would be secreted in a place
other than
appellant’s office: (1) 262 pornographic pictures were found on
appellant’s government computer; (2) appellant fit the pedophile
profile; (3)
appellant advertised for child pornography; (4) appellant solicited
child
pornography; and (5) appellant downloaded and uploaded child
pornography from
his work computer).

2000

United
States v. Monroe, 52 MJ 326 (applications for
authorizations to search for and to seize materials presumptively
covered by
the First Amendment should be evaluated under the same standard of
probable
cause used to review warrant applications generally; there is no
requirement
that an issuing authority personally view allegedly obscene material
prior to
issuing a warrant).

(authorizing official had borderline basis for finding probable
cause to
search where allegedly obscene materials were not attached but were
described
as “graphic pornographic photographs”, words which ordinarily
communicate to a
reasonable person that the images in all probability depict obscenity
as
legally defined).

United
States v. Allen, 53 MJ 402 (probable cause is
determined
by the totality of the circumstances, and is a practical, common sense
decision; deference is accorded the judge or magistrate making the
probable
cause determination).

(there is no requirement for a higher standard of probable cause for
material protected by the First Amendment; a fair probability that the
material
sought is obscene is sufficient).

(there was substantial evidence in the record to support the
decision to
issue a warrant to search appellant’s off-base home where: (1)
information showed that appellant accessed child pornography through
his
on-line server while on duty; (2) appellant had access to the same
service at
home; (3) appellant admitted that he had erotica at his home; and (4)
appellant
was evasive about possessing child pornography at home).

United
States v. Henley, 53 MJ 488 (although information
presented to magistrate did not indicate that evidence of pornographic
material
had been seen in the 5 years prior to execution of the victims’
affidavits
offered in support of search warrant, under the totality of the
circumstances
presented, the magistrate nonetheless had a substantial basis for
concluding
that a search of appellant’s home would uncover evidence of
wrongdoing).

1999

United
States v. Hall, 50 MJ 247 (1999) (there is a key difference
between
probable cause to search and probable cause to apprehend that concerns
the
timeliness of the given information: probable cause to search
must be
based on timely information with a nexus to the place searched; whereas
probable cause to apprehend does not grow stale with time, absent the
subsequent discovery of exculpatory information that would undermine
the prior
existing probable cause).

United
States v. Owens, 51 MJ 204 (1999) (officer had probable cause
to search
automobile based on knowledge of recent car burglaries and presence of
large
quantity of stereo equipment in automobile with wires cut short rather
than
disconnected).

(where there was reason to believe that appellant stole numerous
items from
several vehicles in the dormitory parking lot, commander had probable
cause to
authorize search of appellant’s dormitory room where he correctly
concluded
that the most logical places for appellant to store items were his
automobile
and dormitory room, and some items were not found in search of
appellant’s
automobile; MRE 315(f)(2)).

Stop and frisk:

1999

United
States v. Marine, 51 MJ 425 (a “stop and frisk” is a limited
exception to the Fourth Amendment requirement for probable cause for
government
searches and seizures requiring, first, that the police officer’s stop
must be justified at its inception by a reasonable suspicion that
criminal
activity is afoot and, second, that the stop be reasonably related in
scope
to the circumstances giving rise to the stop).

(race
alone does not amount
to reasonable suspicion to justify an investigative detention).

(the
length of an investigative
detention may be so long as to render the stop, even temporarily, of a
person unreasonable under the Fourth Amendment where law enforcement
did
not diligently pursue a means of investigation that was likely to
confirm
or dispel the suspicions quickly).

Warrants:

2015 (September Term)

United States v. Hoffmann, 75 M.J. 120 (searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable).

(warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions).

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).

(cell phones may not be searched without probable cause and a warrant unless the search and seizure falls within one of the recognized exceptions to the warrant requirement).

2012 (September Term)

United States v. Cote, 72 M.J. 41 (while technical or de minimis violations of a search warrant’s terms do not warrant suppression of evidence, generally the search and seizure conducted under a warrant must conform to the warrant or some well—recognized exception).

(even if there were no time limitation contained in a warrant for conducting an off-site search, the government nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration).

(the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness, and mere technical or de minimis violations of a warrant’s terms are not unreasonable and do not warrant suppression).

(a search and seizure conducted under a warrant must conform to the warrant, or some well-recognized exception).

(the government’s violation of a search warrant’s 90-day time limit for conducting an off-site search of a seized electronic device over a year after the search warrant was issued constituted more than a de minimis violation of the warrant and resulted in an unreasonable search; the 90-day limitation, which was handwritten into the warrant, reflected a judicial determination that under the circumstances of this case, 90 days was a reasonable period of time in which to conduct the off-site search; in addition, the judge who issued the warrant indicated in the warrant that the 90-day limitation could be extended by the judge for good cause shown, but the government never sought an extension of time; performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, was not a de minimis violation, and the government failed to show any fact which would support the argument that its violation of the warrant’s terms was reasonable).

2009 (September Term)

United
States v. Clayton, 68 M.J. 419 (resolution of
doubtful or marginal cases
should be largely determined by the preference for warrants, and close
calls
will be resolved in favor of sustaining the magistrate’s decision).

(courts should not invalidate
warrants by
interpreting affidavits in a hypertechnical, rather than a commonsense,
manner).

(erroneous statement in a search warrant
affidavit that child pornography had actually been located on
appellant’s
government computer did not constitute a significant element of the
probable
cause equation and did not so taint the information provided to the
magistrate
as to require suppression of the evidence of child pornography found
during a
warranted search of appellant’s quarters, where, excising this
information from
the affidavit, there remained more than adequate information to
demonstrate
that the magistrate had a substantial basis for finding that there was
probable
cause to search appellant’s quarters, based on (1) appellant’s
membership in a
website group, “Preteen-Bestiality-and-Anything-Taboo,” (2) the group’s
use of
the website to share child pornography and exploitation information, as
admitted by other group members who had been arrested, (3) appellant’s
request
for digest notification, which enabled him to receive up to 25 postings
automatically each day from the group to the e-mail account bearing his
name,
(4) the fact that the e-mail account bearing his name had been accessed
by a
government computer in Kuwait, and (5) the fact that appellant, who was
stationed in Kuwait, had been provided with a laptop computer by the
Army).

2008 ( September Term)

United
States v. Weston, 67 M.J. 390 (the Fourth
Amendment provides that the right
of the people to be secure in their persons, houses, papers, and
effects,
against unreasonable searches and seizures, shall not be violated, and
no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the
persons or things to be seized).

(ordinarily, warrantless entry
into a person’s
house is unreasonable per se).

United
States v. Macomber, 67 M.J. 214 (the military
judge did not err in ruling that
the magistrate had a substantial basis for finding probable cause to
issue a
warrant authorizing a search of appellant’s dorm room for child
pornography,
where appellant used his dorm address as
the return
address in his correspondence with government agents when he ordered
child pornographic
videotapes and when responding to a sexual interest questionnaire,
where
appellant had subscribed to an Internet child pornography web service
in the
past, and where appellant had expressed an ongoing interest in child
pornography in the questionnaire; based on these facts, common sense
would
suggest a fair probability that any child pornography appellant might
possess
would be located in his dorm room, even though the magistrate was not
informed
that appellant had last accessed the pornographic website 14 months
earlier; the
total circumstances presented to the magistrate raised the fair
probability
that appellant had a present as well as a past sexual interest in or a
sexual
attraction to children, that he probably possessed child pornography
material,
and that it probably was kept where he lived).

United
States v. Rogers, 67 M.J. 162 (a military
judge reviews a magistrate’s
decision to issue a search authorization to determine whether the
magistrate
had a substantial basis for concluding that probable cause existed).

(a magistrate has a substantial basis to issue
a warrant when, based on the totality of the circumstances, a
common-sense
judgment would lead to the conclusion that there is a fair probability
that
evidence of a crime will be found at the identified location).

(in light of the constitutional preference for
warrants, substantial deference is afforded in cases where a magistrate
determines that probable cause exists).

(an affidavit containing a witness’s account
of appellant’s alleged cocaine use provided probable cause for a search
authorization permitting the seizure of appellant’s hair for drug
testing,
where the witness stated that she had seen appellant use cocaine in his
home,
the witness was aware of appellant’s prior court-martial charges and
described
a scar on his stomach, which were not matters of general knowledge
within the
squadron, the witness promptly reported the incident to her chain of
command
and her statements remained consistent, and a forensic science
consultant
confirmed that appellant’s hair would reveal cocaine use if he was a
chronic
user; accordingly, despite some other circumstances that undercut a
finding of
probable cause, the military judge did not abuse his discretion in
upholding
the search authorization in this case; a sufficient nexus existed
between the
alleged crime and the seizure of appellant’s hair; as such, sufficient
facts
existed to support a reasonable belief that testing appellant’s body
hair would
yield evidence of his use of cocaine).

(even though some
circumstances existed in
this case that undercut a finding of probable cause, close calls are to
be
resolved in favor of sustaining the magistrate’s decision to issue a
search
authorization).

2008 (Transition)

United
States v. Stevenson, 66 M.J. 15 (within the
context of bodily
fluids, there are a number of exceptions to the warrant requirement as
well as
circumstances that would negate the need for a warrant; these include
situations where there exists both probable cause and the need to
prevent the
loss of evidence, where the search is necessary to save someone’s life
and the
evidence is in plain view, and where the government demonstrates
special needs,
beyond the normal need for law enforcement; in addition, MRE 312(f),
rather
than being an exception to the warrant requirement, authorizes the
admission of
evidence that was developed incident to a valid medical purpose).

(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).

(in this case, the Fourth
Amendment
problem was that the second vial of blood taken from appellant and
provided to law
enforcement authorities represented a distinct search and seizure from
that
undertaken incident to appellant’s treatment for diabetes with respect
to the
first vial of blood; whatever might be said of appellant’s expectation
of
privacy with regard to the blood draw itself, a search for DNA from the
second vial of blood was not incident to his treatment for diabetes
under MRE
312(f) and was not otherwise authorized by warrant or warrant
exception).

2000

United
States v. Allen, No. 53 MJ 402 (where the findings of the
military
judge showed that OSI officers did not seek the search warrant in
issue,
28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82
relating
to obtaining the concurrence of an United States Attorney prior to
seeking
certain search warrants did not apply - a civilian law enforcement
officer
sought the warrant from a civilian judge).

(warrant
was not general or overbroad
where the listing of items to be searched for related to the
information
constituting probable cause; it focused specifically on sources of
child
pornography, the computer system and internet service provider, and
persons
who may be involved in the criminal activity at the specific address).

(military
judge’s findings of fact
that affidavits in support of a search warrant were not knowingly and
intentionally
false was binding on Court of Appeals for the Armed Forces in that it
was
not clearly erroneous).

(electronic
data stored by an internet
service provider which identified the date, time, user, and internet
site
addresses accessed by appellant fell within Title II of the Electronic
Communications Privacy Act of 1986, “Stored Wire and Electronic
Communications
Transactional Records Access”, and release of such information did not
require a warrant).

1999

United
States v. Fogg, 52 MJ 144 (reviewing a motion to suppress
videotape seized under a warrant which authorized seizure of “crack
cocaine,
packaging and repackaging equipment, papers proving occupancy, records,
weapons, papers, RF detectors, photos, cellular phone[s], police
scanners,
scales/paraphernalia”, court holds that there was a valid warranted
seizure
of the videotape which was covered by the scope of the search warrant
because:
(1) officers executing warrants are often required to exercise
realistic,
common-sense judgment, and they are not obliged to interpret a warrant
narrowly; and, (2) videotape fell within the scope of the warrant which
authorized the seizure of “photographs”).

Wiretaps:

2008
(Transition)

United
States v. Toy, 65 M.J. 405 (under MRE
317(a), wire or oral communications
constitute evidence obtained as a result of an unlawful search or
seizure
within the meaning of MRE 311 when such evidence must be excluded under
the
Fourth Amendment to the Constitution of the United States as applied to
members
of the armed forces or if such evidence must be excluded under a
statute
applicable to members of the armed forces).

(18 USC §§ 2510-2522 address electronic
surveillance in general, including surveillance conducted under color
of law
for criminal law enforcement purposes and surveillance not conducted
under
color of law; with the enactment of 18 USC §§ 2510-2522, and through
the
operation of the Supremacy Clause and the preemption doctrine, Congress
has
defined the relationship between federal and state law in the area of
oral and
wire intercepts).

(18 USC § 2511(d)(2) provides that it shall
not be unlawful for a person not acting under color of law to intercept
a wire,
oral, or electronic communication where such person is a party to the
communication or where one of the parties to the communication has
given prior
consent to such interception unless such communication is intercepted
for the
purpose of committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any state).

(MRE 317, as a whole, is clearly intended to
operate within the congressional scheme set forth under 18 USC §§
2510-2522).

(MRE 317(a), the military evidence rule
excluding wire or oral communications “if such evidence must be
excluded under
a statute applicable to members of the armed forces,” does not directly
incorporate state law in determining an unlawful interception of an
oral or
wire communication; however, it may implicate state law through the
operation
of the federal wiretap law applicable to servicemembers, because 18 USC
§
2511(2)(d), which makes it unlawful for a person to intercept a
communication
with the purpose of committing a criminal or tortious act in violation
of state
law, may, in context, implicate state law).

(MRE
317 applies to evidence that “must” be
excluded by “a statute applicable to members of the armed forces;” 18
USC §
2511 is a federal statute of general application without military
exception; as
a result, to the extent it is generally applicable, it applies as well
to
members of the armed forces; under this section, it is not unlawful for
a
person not acting under color of law to intercept a communication if
that
person is a party to the conversation or where one of the parties to
the
conversation has given consent; nonetheless, in such circumstances, it
is
unlawful, if the communication is intercepted with the purpose of
committing a
criminal or tortious act in violation of a state law; the
text of 18 USC § 2511(2)(d) conclusively demonstrates
that Congress sought to limit unlawful conduct to situations where the
individual had the specific intent or purpose to violate state law when
that
individual acted; otherwise, the language addressing purpose would be
superfluous; if Congress had wanted to except criminal conduct in the
absence
of specific intent, it could and would have done so without the
additional
“purpose” language).

(audiotape and videotape taken of appellant by
his wife were not excludable under MRE 317(a), a military evidence rule
excluding such evidence if it must be excluded under a statute
applicable to servicemembers,
notwithstanding appellant’s contention that the tapes were excludable
under the
federal wiretap statute because they were made with the purpose of
committing a
criminal act in violation of the Hawaii intercept statute, absent
evidence that
wife had the specific intent to violate state law when she made the
recordings).

2000

United
States v. Guzman,
52 MJ 318 (“Neither the Constitution nor any
Act of Congress requires that official approval be secured before
conversations
are overheard or recorded by Government agents with the consent of one
of the conversants.” United States v. Caceres, 440 U.S.
741,
744 (1979)).

(MRE
317(a) is not applicable to
instances of recorded conversations with consenting persons because
such
government conduct does not violate either the Fourth Amendment or a
statute
applicable to servicemembers).

(MRE
317(c) does not contain an express
exclusionary rule; however, excluding evidence from a court-martial to
remedy a regulatory violation may be appropriate if the alleged
violation
implicates constitutional or statutory rights).

(provisions
of former DoD Directive
dealing with wiretaps, which provided for delegation of authority to
authorize
consensual intercept requests to certain upper level management
officials,
did not present the type of issue that required the Court of Appeals
for
the Armed Forces to create an exclusionary rule when none was provided
either in the Constitution or by a statute or regulation).

(where
appellant did not conduct
his activities in reliance upon any limits on delegation of the Navy’s
wiretap approval authority, and where appellant was not harmed by fact
that the interception was approved by the Deputy General Counsel rather
than his immediate superior, exclusion is not required because
appellant’s
due process rights were not violated).